On A General Theory of Interpretation - The Betti-Gadamer Dispute

American Journal of Jurisprudence
Volume 32
|
Issue 1 Article 8
1-1-1987
On a General Teory of Interpretation: Te Beti-
Gadamer Dispute in Legal Hermeneutics
George Wright
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Wright, George (1987) "On a General Teory of Interpretation: Te Beti-Gadamer Dispute in Legal Hermeneutics," American Journal
of Jurisprudence: Vol. 32: Iss. 1, Article 8.
Available at: htp://scholarship.law.nd.edu/ajj/vol32/iss1/8
ON A GENERAL THEORY OF INTERPRETATION:
THE BETTI-GADAMER DISPUTE IN
LEGAL HERMENEUTICS
GEORGE WRIGHT*
INTRODUCTION
SCHOLARS IN ITALY AND ELSEWHERE have long recognized the work of
Emilio Betti (1890-1968) as among the most successful in describing
and orienting the insights and impulses associated with the study of
hermeneutics, the modern theory of interpretation.' A jurist by pro-
fession, older brother of the more famous Ugo, Betti brought to the
study of interpretation a thorough grounding in classical studies as well
as a deep commitment to the particular responsibility of legal practi-
tioners in shaping the contours of social life through legal instrumen-
talities. While his interests as a legal scholar ranged widely, from
Caesar's relations with the Roman Senate to the intricacies of Roman
law to questions of international law,' it is the peculiar strength of
his approach to have framed the specific concerns of legal interpreta-
tion within the larger problematic of interpretation in general. Herein
lies the great promise of his work for legal researchers in this country,
who are seeking only now to bring the method and insights of
hermeneutics to bear on the development of their discipline.,
* I would like to thank Professor Hubert Dreyfus, of the University of Califor-
nia at Berkeley, for many helpful comments on an earlier draft of this article. I would
also like to thank my friend Jack A. Hiller, of the Valparaiso University School of
Law, under whom I first read Heidegger. I have followed the convention of using
forms of the masculine pronoun when referring indifferently to men and women.
1. See for example the article of Niels Thulstrup, "An Observation Concerning
Past and Present Hermeneutics," 22 Orbis Litterarum (1967), pp. 24-44.
2. For a list of Betti's publications and a brief biography, see Chi'V Dizionario
biografico degli italiani d'oggi 78 (7th ed. 1961); also Vittorio Scialoja, "Scritti di
Emilio Betti," 9 Bulletino dell'Istituto di diritto romano (1967), p. 309. Betti was
honored in 1962 with a number of commemorative volumes, containing many articles
relating to the present theme. See Studi in onore di Emilio Betti, voll. I-IV (1962);
of particular interest are the articles by David Daube, Gerhard Funke, Alfred Heuss,
Gunther Kandler, Theodor Litt, Gaetano Righi and Fritz Wagner. See also Giuliano
Crif6, "Onoranze a Emilio Betti," 28 Studia et Documenta Historiae et Juris (1962),
p. 520.
3. A number of recent events signal rising interest in legal hermeneutics, in par-
ticular the symposium held in 1984 by the editors of the Southern California Law
Review. The papers given then have since appeared in that publication, vol. 58, 1985,
numbers I and 2.
192 THE AMERICAN JOURNAL OF JURISPRUDENCE (1987)
Because, in every aspect of their professional activity, lawyers work
with words, their understanding and use of language, their interpretive
technique, is a constituent, even defining, aspect of how they pursue
their craft and how they understand their responsibilities and interests.
Betti's work in hermeneutics, along with two other recent approaches,
represents a critical response to one highly influential view of language,
which we may term interpretive positivism, an attitude signaled among
jurists by adherence to the adage "nec in lege, nec in iure," "if not
in law, neither in right." Seeking to guarantee the autonomy of law
and of legally constituted officials as its interpreters, legal positivists
have characteristically stressed both the pedigree of a given legal pro-
nouncement, that it has been issued by one in authority to do so, and
the peculiarity of the processes by which adequate cognition and ap-
plication of the pronouncement are made, that the official "thinks like
a lawyer" in using precedent and analogy.'
This interpretive stance is the methodological outcome of the view
that law is a matter of rules, issued by one in authority, to be given
effect only so far as the internal consistency of the system of rules
permits. Though recent decades -have seen attempts to import and
legitimate criteria for decision-making which lacked the required
pedigree, e.g., principles of political philosophy, social goals and needs,
political behavior, etc., their proponents have had only partial success
and have at all times faced stiff opposition, both in theory and in prac-
tice. At times, these attempts have failed because they only tentatively
broke with the culture and tradition of positivism which they criticized.
5
4. See infra, footnote 86.
5. A recent article by H. L. A. Hart on the rights thesis as developed by Ronald
Dworkin is an indication of the residual strength both of legal positivism and of its
most clear-sighted proponent; see H. L. A. Hart, "Between Utility and Right," 79
Columbia University Law Review (1979), p. 828. The terms of this debate have not
moved beyond the point at which knowledge of Thomas Hobbes' philosophy is rele-
vant for the light its sheds on liberal social thought. For many, the metaphor of the
social contract remains a compelling image of political association, both in its descrip-
tion of a-social man and in its prescription of a social remedy. Although reasons of
history and language argue against the truth of this metaphor, if it is not to be aban-
doned, and it seems that it is not, then we must understand it better, its origin in
specific historical contexts, the characteristic lines of its development, its insufficien-
cies and distortions. Further, interest in Hobbes is likely to recur. The critique of
Marxism, carried on by Anglo-American scholars, must issue in a rejection of Locke,
the labor theory of value and the language of individual rights. Indeed, Professor.
Hart's article points out the failure of rights theorists to give more than a psychology
of rights, when what is needed is a philosophy of rights. Hobbes remains both the
single greatest obstacle to the metaphysics required for such a philosophic grounding
of rights and also the most likely resort in its absence, I hope soon to bring out a
book-length treatment of Hobbes in his connections with Protestantism and medieval
nominalism.
GEORGE WRIGHT 193
Betti sought to locate himself within the humanist tradition of
jurisprudence in relating law and legal thought both to its social origins
and to its continuing social functions and responsibilities.
6
Following
the teaching of Giambattista Vico (1668-1774),' Betti emphasized that
law, along with philosophy, history, economics,' art, and literature,
is a specifically human achievement, differing in essence from the
phenomena of nature and requiring appropriate interpretive techniques
for adequate understanding. He used the term scienze morali to describe
their function as the moral, or human, sciences, the sciences of the
spirit, rather than of nature, so called in imitation of the German term
Geisteswissenschaften.
6. Several books and articles on humanist jurisprudence by Donald R. Kelley
have yielded important results, in particular his Foundations of Modern Historical
Scholarship: Language, Law and History in the French Renaissance (1970). The work
of Karl-Otto Apel is also very valuable for the humanist perspective in general, especially
his Die Idee der Sprache in der Tradition des Humanismus von Dante bis Vico (1963).
7. The literature on Giambattista Vico is too enormous to canvass here, but.
Benedetto Croce's monograph, though criticized, remains seminal. See Benedetto Croce,
The Philosophy of Giambattista Vico (translated by R. G. Collingwood 1913). Karl
L6with's chapter on Vico in Meaning in History, pp. 115-36 (Eng. trans. 1949), is
helpful. Gustavo Costa's essays in Cultura and the Giornale critico dellafilosofia italiana
are especially valuable for those who know Italian, as is the volume Omaggio a Vico,
which appeared in 1968. In the chapter I have cited, L6with says of Vico's master-
piece The New.Science: [It] appeared in its first edition in 1725 and in its complete
form in 1730 and was again revised in 1744, four years before Montesquieu's L'Esprit
des lois, ten years before Voltaire's Essay, a hundred years before Schelling's Philosophy
of Mythology and Religion, and almost two centuries before it was rediscovered and
recognized as the most original advance toward a philosophy of history. It is the fruit
of a lifelong search into the depth of historical humanity. It anticipates not only fun-
damental ideas of Herder and Hegel, Dilthey and Spengler, but also the more par-
ticular discoveries of Roman history by Niebuhr and Mommsen, the theory of Homer
by Wolf, the interpretation of mythology by Bachofen, the reconstruction of ancient
life through etymology by Grimm, the historical understanding of laws by Savigny,
of the ancient city and of feudalism by Fustel de Coulanges, and of the class struggles
by Marx and Sorel; at 115. No discussion of law and history can omit consideration
of Vico and his theory of mythopoiesis. I have used the revised translation of the
third edition-of the New Science, brought out by Thomas Goddard Bergin and Max
Harold Fisch in 1968, as well as the three-volume Italian edition, published in paper-
back by Giulio Einaudi in 1976, edited by Fausto Nicolini, with a bibliography cur-
rent to around 1956.
8. Betti's inclusion of economics among the moral sciences may surprise the
American reader. Few researchers aspire so patently to achieve the scientific ideals
of classical Newtonian physics as do American economists, with their statistics, models
and hermetic language. But not all practitioners of the dismal science, and certainly
not its best research, may be so described; the. names of Galbraith, Hirschman and
Cipolla, to cite some modern authors, may be given as important counter-examples.
9. We owe the term Geisteswissenschaften to the German translator of John Stuart
Mill's Logic, where, in a supplement to that work, Mill outlines the possibilities of
applying inductive logic to the human sciences. Mill sets out to secure the truth of
the human sciences by showing that the inductive method, basic to experimental science,
Although the human sciences pursue varying cognitive goals and have
different terrains, they are united, according to Betti, in having a
common interest and a common method, the interpretation of one sub-
jectivity by another on the basis of the objectivity present in an exter-
nal object. For in the object of interpretation is traced the history of
a thought or feeling, some evidence of the vital experience of a fellow
human being. This is the interpreter attempts to re-construct out of
his own experience and understanding, not arbitrarily or capriciously
but consistently with the autonomy and inner coherence resident in
the object to be interpreted and in accord with his own interpretive
technique, his "dogmatic." "Two things are thus held in opposition:
one, the subjectivity that is inseparable from the spontaneity of
understanding; the second, the objectivity, or otherness, so to speak,
of the sense which interpretation seeks to elicit from the object. From
this necessary tension flows the whole dialectic of the interpretive pro-
cess. Upon it, one may construct a general theory of interpretation,
which, in allowing critical reflection upon that process, can provide
an account of its ends and methods. This theory is hermeneutics."'
Betti follows Vico in emphasizing the spiritual connection of historical

artifacts, like law and the sense of right, with their producers and in-
terpreters as the basis of knowledge in the human sciences. For the
expression of human creativity in intelligible and characteristic form
was Vico's evident truth, which he asserted in the face of the critical
philosophy of the great French thinker and mathematician Ren6
Descartes (1596-1650), for whom no thesis could be valid unless proven
by a precise demonstration from original, underived independent prin-
ciples. In seeking mathematical clarity, Descartes had hoped to sur-
mount the traditions in which he had been raised in order to lay a
new, unshakable foundation for philosophy and thereby avoid its beset-
ting confusions and contradictions.
Descartes' re-direction of philosophic/scientific inquiry took the
deductive closure of mathematical knowledge as its criterion of truth,
is alone valid also in the human sciences. For human science too, according to Mill,
is concerned to establish similarities, regularities and conformities to a law which would
make it possible to predict individual processes and phenomena. Such an understand-
ing of 'science' makes historical understanding quite impossible, and against it one
must insist upon the fact that historical research does not endeavor to grasp the con-
crete phenomenon as an instance *of a general rule. See infra, footnote II, and Hans-
Georg Gadamer, Truth and Method (Eng. trans. 1975), p. 6. This work of Gadamer
is fundamental for any discussion of interpretation in law that seeks to move beyond
the craft techniques of given lawyers.
10. See infra, pp. 78-9.
GEORGE WRIGHT
united with systematic doubt as the means of arriving at statements
whose universality, clarity, and self-evidence were indubitable, as in
the famous cogito ergo sum." But, as Grassi notes, "If the problem
of philosophy is identical with that of rational knowledge, if this
knowledge in its turn consists of tracing back our assertions to a "first
truth," then emotive elements and with them the influence of images,
of fantasy, of rhetoric play no role whatsoever in this rational pro-
cess. They even appear as elements which interfere with the rational
process."II
The adoption of Descartes' cognitive paradigm foreclosed recourse
to affective knowledge, gained in particular situations by the evidence
of the senses, through demeanor, image, metaphor, gesture, impas-
sioned speech, rhythm, etc.'" The changeable fortunes and passions
of men, with their modulations of the particular, the contingent, the
exemplary, the affective, the seeming-true and the heuristic, could no
11'. On Descartes, see Croce, The Philosophy of Giambattista Vico (1913), pp.
1-20. Eighteenth-century figures like Voltaire, Locke, and Hume came to admire history
as a source of the most probable knowledge and most universal moral certainties.
Possessed of a skeptical distrust of absolute certainty, they appealed to experience
in the search for truth and value against the esprit de systume of the seventeenth-
century philosophers, with their passion for mathematical and abstract truth. The
Enlightenment ideal was that the historian, as a proper philosophe, should recognize
his craft's probabilistic character, adopt a secular theory of motivation, chronology
and causation, and aspire to a view of the human record that transcended his own
nationality and interests; see Thomas J. Schlereth, The Cosmopolitan Ideal in Enlighten-
ment Thought: Its Form and Function in the Ideas of Franklin, Hume, Voltaire,
1694-1790 (1977), pp. 64-65. The author of the Penstes diverses, Pierre Bayle, whose
free thought was a spur to Vico's genius, proclaimed that the historian "ought to
be attentive only to the interests of truth, to which he ought to sacrifice resentment
of injuries, memory of favors received, even love of country. He should forget that
he belongs to any country, that he has been raised in any particular faith, that he
owes his fortune to this or that person, that these are his parents or those are his
friends;" quoted in Roland Stromberg, An Intellectual History of Modern Europe
(1966), pp. 96-97. Hume was not displeased to be abused by the violent of both parties.
Thus the historical interest of these figures was related to their empirical interest in
the facts of nature, for history was to serve as the empirical store house of a universal
"science of morals," the great project of enlightened moral thought, pursued by all
the major Enlightenment historians, Hume, Montesquieu, Gibbon, Raynal, and Robert-
son, as well as enlightened philosophers. On the failure of the Enlightenment'project,
see Alasdair Maclntyre's highly influential study, After Virtue (1981).
12. Ernesto Grassi, Rhetoric as Philosophy: The Humanist Tradition (1980), p. 37.
13. Use of the word paradigm recognizes a debt to Thomas S. Kuhn's The Struc-
ture of Scientific Revolutions (2d ed., enlarged 1970). Part of the story he tells there
concerns a type of historiology in the natural sciences, namely, the construction of
a historical narrative of problems moving inexorably toward solution. Legal researchers
are familiar with similar histories, organized in terms of "tort law," "contract law,"
"property law," etc., all working themselves clear as means of facilitating specific
Proupings of relationships and exchanges. This way of thinking about legal history
longer be the basis of knowledge, which since Aristotle had been taken
to be the grasp of a conformity. Rhetoric and history both, insofar
as they undertook the study of the probable rather than the necessary,
were degraded and lost their former philosophic importance. Whatever
clever rules and maxims they might contain for beautiful speech and
action, the best, if not the only method to convince and act correctly
remained submission to the severity of logical proof, which might lead
to truth.'
As students of English letters are well aware, Descartes' hostility
to rhetoric and metaphoric expression found a parallel in England.
Indeed, it was a conversation partner of Descartes, Thomas Hobbes
(1588-1679), who first brought a new, flat style of philosophic writing
to literary perfection in English; his Leviathan of 1651 emulates Milton's
prose in defining and carrying out a consistent program of verbal ex-
pression, the one florid and conceited, the other spare and unadorned."
It was Hobbes who professedly eschewed the use of metaphor as an
expository tool,'
6
although his figures of the bird in its own errors
is revealing for what it implies about those who devised it, but its adequacy as a con-
struct for all periods and situations, even our own, is not an uninterpreted primitive.
Indeed, the "history of problems" is a form of historiography that distorts more than
it clarifies; see Gadamer, Truth and Method, pp. 305-41. On the division of law into
various branches, cf. Martin Heidegger, Being and Time H362-3. (1 have used and
slightly modified the translation of Being and Time by John Macquarrie and Edward
Robinson of 1962 and have followed the convention of citing to the pagination of
the later German editions, signified by an "H".) Herbert Butterfield, in his The Whig
Interpretation of History (1965), describes "the tendency in many historians to write
on the side of Protestants and Whigs, to praise revolutions provided they have been
successful, to emphasize certain principles of progress in the past and to produce a
story which is the ratification if not the glorification of the present. This whig version
of the course of history is associated with certain methods of historical organization
and inference-certain fallacies to which all history is liable, unless it be historical
research. The examination of these raises problems concerning the relations between
historical research and what is known as general history; concerning the nature of
a historical transition and of what might be called the historical process; and also
concerning the limits of history as a study, and particularly the attempts of the whig
writers to gain from it a finality that it cannot give;" at v-vi.
14. Ernesto Grassi, Rhetoric as Philosophy: The Humanist Tradition (1980), pp.
71-72.
15. Basil Willey's The Seventeenth Century Background (1942), pp. 93-118, is useful
for a consideration of Hobbes' literary connections, but caution must be urged as
to his interpretation of Hobbes' political philosophy. Giorgio Sorgi's article, "La prob-
lematica lettura di Thomas Hobbes," 57 Rivista internazionale difilosofia del diritto
(1980), p. 325, provides an excellent bibliography of some recent work on Hobbes
written in English, French, German and Italian.
16. See Leviathan 101ff. of C. B. Macpherson's edition of 1968. See also Ted
Cohen, "Metaphor and the Cultivation of Intimacy," On Metaphor (1979), pp. 1-10;
originally published in volume 5, issue I of Critical Inquiry, (1978).
GEORGE WRIGHT
belimed," the scarecrow of Aristotelian thought,'" even the great con-
ceit of Leviathan itself,'
9
are the single most memorable features of
his great book. And it was Hobbes who so sharply criticized the moral
reasoning of ancient and medieval thinkers by denying the existence
of a summum bonum, or highest good, shared by all men as the goal
of their
moral
action.
20
Hobbes has a claim on the attention of modern lawyers. Like him,
many recent Anglo-American philosophers and jurists have shown
unrelenting hostility to the use of rhetoric and metaphor in discursive
argument and have similarly tended to reject metaphysics, the theory
of values and ethics as devoid of philosophic content and expressive
merely of sentiment." Despite what contemporaries thought of him,
despite his disputes with Matthew Hale, the great legal scholar and
Lord Chief Justice," Hobbes' influence today is surely greater than
Hale's or Coke's or Seldon's, for, in him, there first appeared the view
17. Leviathan, p. 105.
19. On Leviathan as metaphor, see Carl Schmitt, Der Leviathan in der Staatslehre
des Th. Hobbes (1938), and Michael Oakeshott's "Introduction" to his edition of
Leviathan of 1962.
20. Hobbes discusses the summum bonum in this way: [T]he felicity of this life
consisteth not in the repose of a mind satisfied. For there is no such finis ultimus
(utmost aim) nor summum bonum (greatest good), as is spoken of in the books of
the old moral philosophers. Nor can a man any more live whose desires are at an
end than he whose senses and imaginations are at a stand; Leviathan, p. 160. In addi-
tion to Hobbes' usual criticism of Aristotle, there is a clear reference here to the
scholastic tradition of moral philosophy, especially the thought of St. Thomas Aquinas,
and Hobbes elsewhere confesses his inability to understand Thomas' important idea
of the nunc stans, the eternally present, as a description of the divine life. Though
some have seen in this Hobbes' desire to eradicate religious ideas from political
philosophy, it is rather an inclination to thematize another set of ideas, deriving not
from the categories of rest, self-sufficiency and satisfaction, but from those of mo-
tion, action and change. Hobbes is not alone in pursuing this conviction as to God's
nature; see Michael J. Buckley, S.J., Motion and Motion's God: Thematic Variations
in Aristotle, Cicero, Newton and Hegel (1971). Despite stylistic considerations, I have
given numerous quotations in the text and footnotes so that the reader's efforts in
interpreting the passages will lead him back to the texts themselves and he may become
an interlocutor in a conversation about modern thought that is deep and meaningful.
21. The work of Alfred Jules Ayer may be cited in this connection, especially his
Language, Truth and Logic (2d ed. undated), with the unfortunate blast at Heidegger,
pp. 43-4. On this strain in Anglo-American thought, see Maclntyre, After Virtue (1981).
In contrast to Professor Ayer, Heidegger detaches the question of personal existence
from the empiricist scheme, so that continuity of experience is not projected as a prob-
lem but is taken as given phenomenologically. The Christian socialist theologian Paul
Tillich has written on personality in "The Idea and the Ideal of Personality," The
Protestant Era (1957), pp. 115-135.
22. On this dispute, see Richard Curtis, "Hobbes and Hale: Sovereignty and the
Common Law" (1985; unpublished mansucript, deposited in the Boalt Hall Library).
that the institution of rules by one in authority is of the essence of
justice, as if only to prescribe the occasion and manner of making
and following commands is to meet the criteria of their fairness:
To the care of the sovereign belongs the making of good laws. But
what is a good law? By a good law, I mean not a just law, for
no law can be unjust. The law is made by the sovereign power, and
all that is done by such power is warranted and owned by every
one of the people; and that which every man will have so, no man
can say is unjust. It is in the laws of a commonwealth as in the
laws of gaming: whatsoever the gamesters all agree on is injustice
to none of them. A good law is that which is needful for the good
of the people and withal perspicuous."
This extreme concentration of questions of justice upon the figure
of the sovereign was a function of Hobbes' desire to render the
possibilities of political action amenable to rigorous description and
prediction. For he believed he could count out all the possible com-
binations of political life, reckon up the passions of men and thereby
gain mastery over life's vicissitudes, as the philosophers had failed to
do. In Hobbes' sovereign were concentrated all the powers he thought
sufficient to assure any political association enduring peace and stability.
Thus, while this political project was conceived and carried out from
within Hobbes' understanding of his own quite particular historical
circumstances, its end result was to be non-historical and exact in the
same way in which geometry lacks history and indeterminacy. It was
to be a mechanical science of society, the terms of which are familiar
to us today from modern social science, having changed little since
Hobbes described them in De Cive and Leviathan."
But Hobbes had less success than some modern thinkers in suggesting
that laws and justice were related like rules for gaming, and he soon
ran afoul of the religious and political beliefs of many of his contem-
poraries, chief among whom was the Bishop of Derry, John Bramhall.
Hobbes and Bramhall conducted an extended war of words over the
freedom of the will," Bramhall asserting it upon moral, religious and
24. See De Cive Epistola dedicatoria, pp. 73-84, in the admirable critical edition
of the late Howard Warrender (1983), and Leviathan, chapter 26; cf. Jerry Weinberger,
"Hobbes's Doctrine of Method," 69 American Political Science Review (1975), pp.
1336-53. My own interest in Hobbes stems from Roberto Mangabeira Unger's treat-
ment of liberal thought in his seminal work Knowledge and Politics (1975).
25. This logomachy caught the attention of the poet T. S. Eliot, who championed
Bramhall, hailing him as a giant battling a pygmy! See Eliot, Selected Essays (3d ed.
1951), pp. 355, 359.
GEORGE WRIGHT
political grounds, Hobbes similarly denying it. Indeed, Hobbes' response
to the bishop recalls the resoluteness of Luther before the Diet: "What
use soever be made of truth, yet truth is truth; and now the question
is not what is fit to be preached, but what is true."'"
Apart from its moral repugnance and religious offense, Bramhall
also saw in Hobbes' determinism a political disadvantage. "State
policy," he remarked, "which is wholly involved in matter and cir-
cumstances of time and place and persons is not at all like arithmetic
and geometry, which are altogether abstracted from matter, but much
more like tennis play. . . . There is no room for liberty in arithmetic
and geometry."" Bramhall, in arguing for indeterminacy in politics,
failed to come to grips with the central point in Hobbes'. analysis,
namely, that politics seems random because we cannot yet calculate
the variables accurately enough. But according to Hobbes, the study
of human nature is in principle no different from that of meteorology,
imperfect only because our knowledge has been rudimentary but capable
in theory of mathematical exactness. The bishops's failure to under-
stand the necessity with which his own actions occurred showed mere-
ly a lack of knowledge:
A wooden top that is lashed by the boys, and runs about sometimes
to one wall, sometimes to another, sometimes spinning, sometimes
hitting men on the shins, if it were sensible of its owm motion, would
think it proceeded from its own will, unless it felt what lashed it.
And is a man any wiser, when he runs to one place for a benefice,
to another for a bargain, and troubles the world with writing errors
and requiring answers, because he thinks he doth it without other
cause than his own will, and seeth not what are the lashings that
cause his will?
2
'
Bramhall, who was a quite conventional figure, vigorous, newly rich,
and a defender of the church's interest in Ireland, earned Hobbes' en-
mity in part for views which Hobbes had encountered before and during
the Civil Wars, when many Englishmen claimed a right of private in-
terpretation of law in its relation to Scripture:
26. Quoted in Leopold Damrosch, "Hobbes as Reformation Theologian: Implica-
tions of the Free-Will Controversy," 40 Journal of the History of Ideas (1979), pp.
339-52, 344. On Luther's statement before the emperor, see James MacKinnon, Luther
and the Reformation, vol. 2 (1962), p. 302.
27. Quoted in John Bowle, Hobbes and His Critics (1951), p. 120; see also Samuel
Mintz, The Hunting of Leviathan (1962).
28. Hobbes, The Questions Concerning Liberty, Necessity, and Chance, 5 English
Works, p. 55.
[My Lord of Derry] further says that "just laws are the ordinances
of right reason;" which is an error that hath cost many thousands
of men their lives. Was there ever a King, that made a law which
in right reason had been better unmade? And shall those laws
therefore not be obeyed? Shall we rather rebel? I think not, though
I am not so great a divine as he.?
9
Hobbes thus joined Descartes in denigrating rhetoric and the claims
of traditional moral and political philosophy. In launching his thorough-
going attack on the doctrine of right reason and its cognate virtue,
prudence, the sagacious and particularized application of rules through
a faculty of judgment containing an internal rule of decorum,
3
" Hobbes
sought to sever the link of rhetoric and prudence, the distinguishing
feature of the Aristotelian rhetorical tradition and its long sequel in
Roman, medieval, and Humanist jurisprudence. In this way, he pur-
posed to obviate reliance on the conscience, on right reason and
prudence and on the use of the passions to bring about civic virtue
in favor of a geometry of politics and law.'
All these transgressions against the tradition found their vindicator
in a solitary, Neapolitan professor of rhetoric. Vico objected to
enlightened science for its failure adequately to grasp the nature of
contingent human affairs, for "from the probable, there arises natural
common sense, which is the norm of all practical intelligence (pruden-
tial) and hence also of eloquence. For orators have more difficulty
with a true state of affairs which does not seem probable than with
a false one making a plausible impression."" Common sense, knowledge
of the way things are in fact among men and the rights of truth itself
thus militated against Cartesian science.
Vico accordingly sought to found a new science of historical investiga-
tion, whose truth might be prior to and superior to that of mathematical-
ly constructed Cartesian science and its critical principle of systematic
doubt. Vico discovered his fundamentum inconcussum, the unshaken
cornerstone of his science, in the imagination, the human capacity to
order things spontaneously in classes by a speculative grasp of a situa-
tion under the force of strong emotion. Rather than study later,
"enlightened" forms of rationality, Vico considered the witness of
29. Quoted in Leopold Damrosch, "Hobbes as Reformation Theologian: Implica-
tions of the Free-Will Controversy," 40 Journal of the History of Ideas (1979), p. 344.
30. See Marjorie O'Rourke Boyle, Rhetoric and Reform: Erasmus' Civil Dispute
with Luther (1983), and Victoria Kahn, Rhetoric, Prudence, and Scepticism in the
Renaissance, "Hobbes: A Rhetoric of Logic" (1985), pp. 152-81.
31. Ibid.
32. Quoted in Grassi, Rhetoric as Philosophy: The humanist tradition, 'Rhetoric
and Philosophy," (1980), pp. 18-34.
GEORGE WRIGHT
primitive artifacts, in which the original traces of spontaneous creative
productivity, mythopoiesis, were more readily seen:
But in the night of thick darkness enveloping the earliest antiquity,
so remote from ourselves, there shines the eternal and never failing
light of a truth beyond all doubt: that the world of civil society
has certainly been made by men, and that its principles are therefore
to be found within the modifications of our own human mind."
His epistemological principle derived from the creative activity relating
the maker to his product. Vico extended his idea of creativity even
to the relation of a reader to his masterpiece, The New Science:
Our Science therefore comes to describe at the same time an ideal
eternal history traversed in time by the history of every nation in
its rise, development, maturity, decline and fall. Indeed we make
bold to affirm that he who meditates this Science narrates to himself
this ideal eternal history so far as he makes it for himself by that.
proof "it had, has and will have to be." For the first indubitable
principle posited above is that this world of nations has certainly
been made by men, and its guise must therefore be found within
the modifications of our own human mind. And history. cannot be
more certain than when he who creates the things also narrates
them."
,
Vico wondered that philosophers should have given their attention
to a world they did not create and therefore could not know:
Whoever reflects on this cannot but marvel that the philosophers
should have bent all their energies to the study of the world of nature,
which, since God made it, He alone knows; [and] that they should
have neglected the study of the world of nations, or civil world,
which, since men had made it, men could come to know. Now, as
geometry, when it constructs the world of quantity out of its
elements, or contemplates that world, is creating it for itself, just
so does our Science [create for itself the world of nations], but with
a reality greater by just so much as the institutions having to do
with human affairs are more real than points, lines, surfaces and
figures are.
3
The primacy accorded mathematical proofs by Descartes and Hobbes
is thus discounted by Vico on the basis of their createdness. We
demonstrate mathematics because we create their truth. If we could
demonstrate the physical world, we would be creating it.",
33. New Science, 33!.
34. New Science, 349.
35. New Science, 331.
36. See Croce, The Philosophy of Giambattista Vico (1913), pp. 7-9. Croce goes
on to give this summary of an early. stage in Vico's development: The Platonism,
agnosticism or mysticism of Vico is in the fullest sense of the word original, because
Vico re-appropriated the language of mathematics in this way as-yet
other institution, among those of law, art, philosophy, etc., all pro-
ducts and witnesses to human creativity.
Apel has called Vico the culminating point of the humanist tradi-
tion, that long line of literary scholars and thinkers who have acted
as the residual legatees of classical civilization." But he is also the
presumptive forebear, often dimly recognized,
38
of succeeding genera-
it forms the accompaniment of doctrines not only not inferior to the average of con-
temporary thought, but greatly in advance of it.
The first of these doctrines is the theory of knowledge as the conversion of the
true with the created, Vico's substitute for the otiose criterion of the clear and distinct
perception. Though this criterion represents for Vico an ideal unattainable to man,
it yet does not bring with it an exact definition of the condition and character of
knowledge, the identity of thought and being, without which knowledge is inconceivable.
The second is the revelation of the nature of mathematics as unique among the
forms of human knowledge in origin, rigorous because arbitrary, wonderful but unfit
to rule over and transform the rest of our knowledge.
Finally, the third doctrine is the vindication of the world of intuition, empirical
knowledge, probability, and authority, all those forms of experience which intellec-
tualism ignored or denied.
In these points Vico the agnostic, the Platonist, the mystic, was neither agnostic
nor mystic nor Platonist. He achieved a threefold advance upon Descartes, and upon
all these three heads criticized him conclusively; pp. 18-9.
37. Despite current hostility to humanism, its importance cannot be doubted, so
long as it is seen that classical civilization retains its priority in Western thought. It
is possible for a lawyer to sue in tort and not know of the existence of Thomas Hobbes,
as I have seen, but, unless ignorance is prized, it is hardly desirable that this should
be so. How much less desirable it is not to know of Heraclitus and Parmenides, whose
fundamental thinking framed the whole development of Greek thought, from Plato
on, and therefore of all subsequent thought in the West. The legacy of the classical
past and the continuing normativity of its literature, art and thought was raised as
a problem during the seventeenth-century debate known as the querelle des anciens
et des modernes, when writers in the court of the Sun King self-confidently set out
to rival the excellences of the past in introducing a new classical period of literature.
While the debate began as a literary quarrel, its outcome led to the historical awareness
that ultimately limited the exemplary status of the classical world. Many modern authors,
chief among whom was Leo Strauss, the outstanding political philosopher, have deplored
the effects of historical awareness on our present capacities to discern such elementary
distinctions as that between right and wrong. Strauss' impressive teaching and scholarly
work were aimed at establishing the theoretical standpoint from which the classical
authors could be understood in their clear rightness as exemplars and models. In his
attempt to raise a naive historicism above its meager and stultifying historical condi-
tions, primarily through study of the classics, he is surely right, though more must
be said. See Gadamer, "Hermeneutics and Historicism," Truth and Method, pp. 460-91,
esp. 482 ff., and Gadamer, "Gadamer on Strauss: An Interview," 12 Interpretation
(1984), p. 1.
38. For a description of Vico's links to later figures, see Thomas Bergin's and
Max Fisch's "Introduction" to their translation of Vico's Autobiography (Eng. trans.
1944).
GEORGE WRIGHT
tions of scholars, especially in the disciplines of history, law and,
theology, who developed similar ideas.
9
Betti claims a share in that patrimony, as will appear from the essay
here translated, and, having given this brief consideration of the ideal
background of his thought, we may now increase our understanding
of his approach by contrasting it with two others, both very powerful-
ly developed and similarly opposed to interpretive positivism, one, the
school of the new rhetoric, represented by the Belgian Chaim Perelman,
and the other, the hermeneutic movement of Martin Heidegger, Rudolf
Bultmann, and Hans-Georg Gadamer.
The background of hostility we have traced in Hobbes and especial-
ly Descartes provides an important stimulus to Professor Perelman's
work. For his philosophic activity is characterized by a profound and
constant desire to undo the history of ideas by winning back moral
reasoning and moral suasion to the field of philosophy itself. The chief
error he reprehends in modern thinkers is to have imported a concept
of proof into the field of human conduct that is unduly restrictive."'
For, while it is a matter neither of logical necessity nor empirical obser-
vation, moral reasoning nonetheless characteristically involves a pro-
cess of argumentation and evaluation as the means of proposing and
justifying a given course of action, to oneself as well as to others. Rather
than reject such argumentation as mere pseudo-propositions in the style
of some modern philosophers, Perelman has sought to expand the no-
tion of proof to include it within a theory of reasoned persuasion."
39. See Erich Auerbach, "Vico's Contribution to Literary Criticism," Studia
Philologica et Litteraria in Honorem L. Spitzer edd. A. G. Hatcher et K. L. Selig
(1958), pp. 31-37.
40. Chaim Perelman and L. Obrechts-Tyteca, The New Rhetoric. A Treatise on
Argumentation (Eng. trans. by John Wilkinson and Purcell Weaver 1969, 1971), p. 4.
41. Chaim Perelman, "De la preuve en philosophie," Rhtorique'et Philosophie
(1952), p. 122. H. L. A. Hart ends his "Introduction" to Perelman's The Idea of
Justice and the Problems of Argument in this way: [Professor Perelman] has illuminating
criticisms to make both of the Cartesian theory of knowledge resting on the criterion
of self-evidence and of empiricist theories which conceive knowledge as a structure
at the base of which is an indubitable experience of sense-given data. Both of these,
in M. Perelman's view, share a common error, and have generated misconceptions
of the role of language and methodology of the sciences, and a misleading contrast
between knowledge and opinion. In this part of his work M. Perelman has reached,
by an independent route, conclusions similar to those of contemporary English
philosophers who have also been critical of both the rationalsim and empiricism of
the past. Many English readers therefore will certainly be now disposed to agree with
M. Perelman's dictum that "reasoning is infinitely more varied than anything to be
found in the manual of iogic or of scientific methodology," but they cannot fail to
be instructed by the range of novel and important considerations which M. Perelman
urges in its support; p. xi.
While moral action may not be based on reasons that compel com-
pliance through evident necessity, it does proceed with reference to
norms and values which may make one course of action more justifiable
and desirable than some other.
Perelman thus seeks to extend the notion of proof precisely in order
to present as rational all those dialectical and rhetorical arguments,
employed in defense of any possible thesis or position.
2
Action may
then be justified consistently on the basis of a logic not of the true
but of the preferable, a logic of moral decision in which adherence
is sought not through a simple submission to evidence or logical necessity
but through the dialectic of judgment itself, the process of arriving
at a decision freely taken. The "new rhetoric" is thus a logic of those
reasonings, or conventions, which move us to action and justify our
conduct without determining it;'
3
it allows us liberty of decision without
rendering our choices absurd or irrational. The possibility of justifica-
tion of action on the basis of this logic becomes for Perelman the prin-
ciple through which morality may enter again into the domain of
philosophy."
Both Betti and Perelman reject the mechanical world-picture and
its ideal of science and logic as a means of understanding human
behavior. But Betti does not share the project of enlarging the notion
of proof, and indeed it may introduce a dichotomy between species
of reasoning that for him would be illicit. For, in distinguishing
argumentative proof from formal proof, Perelman has sought to vin-
dicate freedom of action as if the choice to attempt to speak rationally
and correctly were not itself an exercise of freedom, as if there could
be any model of rationality external to the sphere of liberty. Proposi-
tions are said to hold necessarily only if they accord with rubrics
operative Within a freely chosen set of principles and procedures. If
the store from which such principles are chosen were limited, then the
premise and direction of Perelman's work might be justified. But such
does not seem to be the case. Perhaps only within the "artificial in-
telligence" community do researchers hope to articulate a complete
formalization of the mental processes involved in thought and action,'"
42. Perelman, "Libert6 et raisonnement," op. cit., p. 47.
43. Perelman and Obrechts-Tyteca, op. cit., pp. 2-3. It is quite possible that the
tendency of Professor Perelman's work is to project a logic of conventions or of
customs, whose eventual outcome would be the absorption, of traditional logic into
itself. See Maria Grazia de Cristofaro Sandrini, "Logica e morale nel pensiero filosofico
di Perelman," 24 Rivista critica di storia della filosofia (1969), p. 439, footnote 23.
44. Sandrini, art. cit., p. 446.
45. See Hubert Dreyfus, What Computers Can't Do: The Limits of Artificial In-
telligence (rev. ed. 1979).
GEORGE WRIGHT
and, in the light of the work of Wittgenstein on the one hand and
Godel on the other, this effort is doubtful in the extreme. The con-
trast Perelman draws between formal and argumentative proof thus
seems to pass over the requirements of liberty and responsibility generally
recognized by workers in all sciences, exact as well as human.
While Betti resists efforts to interpret human behavior within the
categories offered by the mechanical world-picture,"
'
he does not seek
to attenuate the rigor of one branch of knowledge to accommodate
what is essential in another. Rather, he retains the requisites of
knowledge as common to both the natural and moral sciences while
distinguishing them on the basis of their differing objects and inter-
pretive procedures. In the essay which follows, he sets out to specify
the object of the human sciences with rigor and to show how the
category of spirit is both fundamental in the human sciences and
unknown in the natural sciences.
It is over the question of interpretation itself that Betti's disagree-
ment with Gadamer and Heidegger may be said to arise. His differences
with Gadamer became explicit over the years of his theoretical activ-
ity, and, as he mentions in the present essay, they concern the key
relation of interpretation and understanding."'
For Betti, understanding follows upon interpretation; it is the possi-
ble outcome of a process which operates upon the representative forms
it takes as its objects in strict conformity with general hermeneutic
canons. These representative forms are marks of human personality;
they signal the spontaneity of human experience, i.e., spirit, concretized
in enduring manifestations. According to Betti, the objectivity of these
forms and of our approach to them guarantees our capacity to know
the human spirit that gave them utterance. He thus joins a long line
of thinkers for whom the objectivity of interpretive criteria and method
assures the correctness of understanding as the interpretative outcome.
While historical and normative inquiry may require the use of inter-
pretive canons different from those used in studying nature, the out-
comes in both research fields need not differ as to their certainty and
correctness. Knowledge is taken here primarily on the model of intui-
tion, the sheer beholding of what is present, of what is given immediately
to one's gaze. In contrast to the natural sciences, what is beheld in
46. Betti's opposition to mechanical metaphors in legal thought is demonstrated
in his treatment of conflict of law problems in international law; see infra, pp. 98-101.
See Martin Heidegger's essays "The Question Concerning Technology" and "The Age
of the World Picture" in the volume The Question Concerning Technology and Other
Essays (Eng. trans. 1977), pp. 3-35, 115-54.
47. See infra, p. 76, footnote 4.
the moral sciences is language, present in speech, in conduct, and in
texts, as the object of interpretation; for Betti, it is through the objec-
tive forms of language that one subject encounters a second.
Implicit in interpretation, according to Betti, is the possibility of deter-
mining both what the experience was that has been given enduring form
and the success with which the representation of that experience has
been made. The interpreter may distinguish the work of spontaneous
creation from that of reflexive elaboration and can gauge the adequacy
with which the given concrete form reflects the antecedent experience."
A key interpretive category for Betti is thus the state of mind of the
creator of the representative form to be interpreted, and a central in-
quiry is how well the creator has expressed his thought in the object
he has produced.
These interpretive possibilities may seem appropriate to works of
art, but not to law. And the element of subjectivity, that is, the con-
sideration of the state of mind of a given author, may bear peculiarly
the mark of the artistic and of aesthetic consciousness. But such a
response would obscure both the nature of the material upon which
the lawyer exerts himself, namely, words, and some of his most com-
mon, well recognized interpretive problems. In dealing with legislative
enactments, legal researchers are familiar with the question of legislative
intent, which is so important in determining whether or to what extent
case law has been superseded or merely codified by statute. Contract
law, on one view, rests on a subjective "meeting of the minds." Giv-
ing words their appropriate sense, according to their archaic, current
or technical meaning, is an important part of legal interpretation, em-
bodied for instance in the "common meaning rule." And the concern
to find appropriate cases to illustrate a given legal precept, exclusive
of particularities of time and place, bespeaks the practitioner's ability
to weigh factors in a given case history and reach a conclusion as to
the origin and purview of a legal rule. In all these instances, the ques-
tions of intent and success in expression figure centrally, and it would
be a mistake to dismiss them as peripheral to law. It is much more
likely that abilities in these areas are integral to the lawyer's craft, which
is nothing if not a linguistic technique, a characteristic way of working
with words and their possible truth."
9
48. See infra, p. 86.
49. This linguistic technique, the "dogmatic" of the lawyer, is of course historically
variable. The aspirations for clarity, precision, persuasive power, etc., of one group
of lawyers differ from those of another. See infra, p. 85.
GEORGE WRIGHT
According to Betti, changed circumstances require changes in law..
But to change law, to adapt it, however important this is to one seek-
ing to apply a norm, is hardly the concern of the historian. Thus it
is a key feature of Betti's analysis that, after an adequate account of
a rule or principle has been given, the task of the legal historian is
said to diverge from that of the contemporary practitioner, who must
take the further step of bringing a present exigency within the scope
of the given legal directive, so that a norm for action may be given.
This he does on the basis of his perception of the social circumstances
in which he himself participates with others:
Confronted with the very same law, a contemporary jurist with nor-
mative interests differs in outlook and goals from a later jurist with
historical interests. The desire to derive maxims of conduct from
a law in force is different from the desire to gain a historical under-
standing of it. So also, the orientation of their investigations is dif-
ferent. To contemporaries, the relevant norms present themselves
as vital relations among interests in conflict. For them, a summary
sketch may suffice to represent the complete outline of a legal in-
stitution. But this is not sufficient for the jurist-historian. He lacks
the immediate intuition of life they presuppose. He must complete
the gaps he finds in past law with material drawn from other
historical sources. In compensation, there stretches before him the
ulterior course of the historical development, viewed from the van-
tage point of his library. From here, he encompasses things which
the jurists of the time could neither see nor presage."
Implicit here are the assumptions that contemporaries share an im-

mediacy of understanding of their times that enables them to find
common ground upon which to reach accord and that it is on the basis
of this spiritual community, given to coevals, or, in the case of the
historian, reconstituted by painstaking research, that interpretation pro-
ceeds. The key is that to understand means primarily for people to
understand something about one another; in this we see the centrality
of Betti's idea of spirit, which refers here to the dynamic-creative nature
of man's personal and communal life and is only secondarily a religious
term. Understanding is agreement or harmony with another person or
set of persons. These assumptions and the interpretive tasks they
prescribe are not in the least peculiar to Betti; indeed, they underlie
a good deal of current American legal thought, evidenced for instance
by the interest in arbitration as a means of dispute settlement.
Gadamer denies both that a divergence in goal and orientation
necessarily occurs between the historian and the practitioner and that
50. See infra, p. 88.
any extra step is either needed or indeed taken by the practitioner as
legal researcher; in the language of traditional hermeneutics, this is
to deny that understanding (subtilitas intelligendi), interpretation (sub-
tilitas explicandi), and application (subtilitas applicand) are separable
moments of the interpretative process." With Heidegger, Gadamer
postulates a prior understanding as the basis of interpretation and locates
the work of the interpreter within the circle of this fore-understanding
of his text. Implicit in the task the interpreter sets himself, understand-
ing is not for Gadamer the outcome of interpretation as for Betti; rather
both processes are concomitant, insofar as they can be distinguished
at all.
Traditional hermeneutics had taken as its paradigmatic instance of
understanding the circularity of wholes and parts: the part, a chapter
of a novel, for instance, cannot be known apart from its place in the
whole novel, but the novel can be known only from its chapters, that
is, from its parts. We understand on this view only when the circles
of whole and parts are co-extensive, when the parts are wholly con-
tained within our knowledge of the whole and vice versa; to know
is to grasp a meaning as self-contained, as it is in itself, as sheer objec-
tive presence, the foundation of Betti's approach. The traditional view
of interpretation thus postulated the unity of the work to be inter-
preted, just as lawyers postulate the unity of a code or the body of
common law."
51. See Truth and Method, p. 274; see also Niels Thulstrup, "An Observation
concerning Past and Present Hermeneutics," 22 Orbis Litterarum (1967), pp. 24-44, 35.
52. This expectation of unity in the given text stems from the fact that traditional
hermeneutics developed along two paths, one, theological hermeneutics, from the
reformers' defense of their own understanding of the canon of Scripture against the
attack of the Tridentine theologians; and the other, literary critical hermeneutics, as
a tool of the humanist claim to revive the body of classical literature. Traditional
hermeneutics claimed to reveal the original meaning of texts of both traditions, the
Bible and humanistic literature, by specialized techniques, such as form criticism and
source criticism. The nature of -humanist culture restricted the number of its effective,
participants, so that hermeneutics gained its importance for a broad audience largely
within the Protestant churches, as an aid to the. proclamation of the Word through
preaching. Here, univocation remained the defining commitment in Protestantism's
attempt to know the one true meaning of Scripture, in conscious opposition to the
interpretative techniques accepted in medieval Roman Catholic tradition. Thus, for
example, the Lutheran explicator, Flacius, says: It was no little obstacle to the clarity
of Scripture and to the truth and purity of Christian doctrine, that practically all the
writers and fathers in their interpretations and explications of sacred writings treated
them as if they were a miscellaneous collection of sentiments, and not as an artistic
unity conforming to correct principles of composition. In sacred scripture, as in works
of literature, the true'meaning depends on the context, on the purpose of the work
as a whole, and on the organic relations which unite the parts as members are united
GEORGE WRIGHT
Gadamer departs from the traditional paradigm by thematizing a
circularity not within the parts and whole of the work to be interpreted
but within it and the approach of its interpreter. The hermeneutic prob-
lem lies in the fact that the premises of interpretation are always already
given in some attitude of the interpreter to the object to be interpreted.
In this sense, application is always part of the interpretative task, not
merely for the practitioner but for the historian as well, for under-
standing always involves the application of the meaning elicited by in-
terpretation. All reading involves application, so that a person reading
a text, be he judge, historian, or literary critic, is himself part of the
meaning he apprehends, just as historical research is itself always
historical."I
In Truth and Method, Gadamer has argued that because the same
interpretive problem precedes and grounds all historical research, the
legal historian's approach to a law is indistinguishable from that of
the practitioner:
The very universality of the hermeneutic problem precedes every kind
of interest in history, because it is concerned with what is always
fundamental to the historical question. And what is historical
research without the historical question? .... [A]pplication is an
element of understanding itself. If, in this connection, I put the legal
historian and the practicing lawyer on the same level, I do not deny
that the former has exclusively a "contemplative," and the other
a practical, task. Yet application is involved in the activities of both.
How could the legal meaning of a law be different for either? It
is true that, for example, the judge has the practical task of passing
judgment, and many considerations of legal politics may enter in,
which the legal historian (with the same law before him) does not
consider. But does that make their legal understanding of the law
any different? The judge's decision, which has a practical effect on
life, aims at being a correct and never arbitrary application of the
law; hence it must rely on a "correct" interpretation, which necessar-
ily includes the mediation between history and the present in the
act of understanding itself."
With Gadamer, we may reason that, as a present concern, the given
in one body; quoted in Norman 0. Brown's classic, Love's Body (1966), p. 194. A
decisive step in the development of biblical hermeneutics was taken in the eighteenth
century when interpretation focused on an individual book of the Bible as the relevant
whole, rather than on the canon of books received from the early church; on this
development, whose importance can scarcely be overestimated, see the impressive work
of Henning Graf Reventlow, The Authority of the Bible and the Rise of the Modern
World (Eng. trans. 1985).
53. Truth and Method, p. 292.
54. Truth and Method, p. xx.
law can be either as it was when first pronounced or it can be dif-
ferent. If it has continued unchanged over the years, then, in research-
ing its original formulation, the historian learns all there is to know
about the law, which is as much as the contemporary practitioner needs
to know. If it has changed, to know what it is at present is to know
it in the history of its changes, agiin the same task required of the
practitioner. Both researchers must determine whether the lawy they
are studying has changed or remained the same as they find it now.
No further step is needed since to know the law is necessarily to know
it in the continuity of its history, which is to know it in its present
currency; whenever a law is known, it is known as it effectively is,
whether it is in force or not. Unless the practitioner means to legislate
or is somehow deflected from the proper course of legal cognition,
no adaptation to present circumstances, as a discreet step of applica-
tion in the process of interpretation, is required. That a researcher's
interest in a law is solely historical does not free him from the necessity
of both discarding inappropriate pre-conceptions from the present and
understanding the law in ways that make sense in the present:
Must [the legal historian] not then do exactly the same as the judge
does, i.e., distinguish between the original meaning of the text of
the law and the legal meaning which he automatically accepts now
in the present? The hermeneutical situation of both the historian
and the jurist seems to me to be the same in that when faced with
any text, we have an immediate expectation of meaning. There can
be no such thing as a direct approach to the historical object that
would objectively reveal its historical value. The historian has to
undertake the same task of reflection as the jurist."
Nor is the identity of task between practitioner and historian at all
unique to legal researchers; rather, it is an integral part of the work
of all students in the sciences of the spirit:
[Tihere is always contained in historical understanding the idea that
the tradition reaching us speaks into the present and must be
understood in this mediation-indeed, as this mediation. Legal
hermeneutics is, then, in reality no special case but is, on the con-
trary, fitted to restore the full scope of the hermeneutical problem
and so to retrieve the former unity of hermeneutics, in which the
jurist and theologian meet the student of the humanities.
6
56. Truth and Method, p. 293. See also Professor Gadamer's article, "On the
Scope and Function of Hermeneutical Reflection," 8 Continuum (1970), pp. 77-95,
and the collection of articles, Reason in the Age of Science (Eng. trans. and introduc-
tion by Frederick G. Lawrence 1982). The meeting Gadamer envisions between students
GEORGE WRIGHT
Gadamer agrees with Betti then that, in every case, legal analysis,
normative or historical, proceeds on the basis of a present understand-
ing and interest, but he disputes Betti's claim that the practitioner,
as opposed to the historian, must self-consciously move the law whose
history he has learned into intimate contact with present concerns upon
the basis of the knowledge of a spiritual communion he shares with
his contemporaries. If this second step is necessary, then perhaps some
error in legal cognition has occurred. For Gadamer, the fact that a
law has remained in force and is to be enforced in no way changes
the character of the task set for the legal researcher, either as historian
or practitioner; in either role, he seeks historical understanding of a
law in an appropriate way, i.e., as a law.
Understanding this specific difference dividing the two thinkers allows
us to deepen our sense of the underlying problems. For the root issue
in their disagreement is Betti's desire to retain the objectivity of the
object of interpretation in the face of Martin Heidegger's powerful
rethinking of the ground and relation of subject and object. And
Gadamer's specific theme, the circularity of interpreter and the object
of his interpretation, rests on Heidegger's description of human ex-
istence in general as being in the world. Indeed the circularity of inter-
preter and text is a special case of a broader problematic, the character
of human existence, or Dasein, in Heidegger's term, as the ground
of intuition and intention.
We shall pursue our consideration of the Betti-Gadamer dispute first
in its connections with the paradigm of knowledge as perspective-less
beholding. Then we shall turn to Heidegger's and Gadamer's criticism
of Vico's theory of mythopoiesis, the production of the conditions of
social life. We shall reveal that, despite his intentions, Vico carried
out and deepened the ideal of knowledge adumbrated by Descartes
and Hobbes.
of law and of the humanities has not yet occurred in American law schools, where
the spirit of empty and misinformed vocationalism reigns. Students, fearful for their
grade point averages and transcripts, hesitate to take courses in legal thought and
history for reasons justified in conscience by no law professor. Professors, desirous
of satisfying student demands, formulate policies aimed at effectuating student choices
whose shortsightedness and puerility they refuse to educate. The results of this tendency
to make legal education transparent to some imagined job market are bad in all cases,
enervation of the mind and shrinkage of the status interests of the profession. Although
educators in law schools are not accustomed to look there for guidance and insight,
divinity schools, whose object is the training of the very practical men and women
of the clergy of churches and synagogues, have been able to retain a very large and
lively sphere of learning and scholarly competence, as well as the ideal of service and
professional dedication. See infra, footnote 90.
Against Descartes and, by implication, the metaphysical tradition,
Heidegger teaches that human existence is always already situated under-
standingly in the world, in the manifold of its concerns. Dasein is in
the world as such; the world is not purchased in some movement from
innocence to experience or discovered through clearer perception or
revealed by an act of faith. Dasein is being in the world and is so
understandingly, in a way that is constitutive of its being.
For Descartes it is quite different. Descartes describes the basic on-
tological characteristic of the world as the extension in space of substance
as res extensa. Extension in length, breadth, and thickness thus makes
up the real being of that corporeal substance (res corporea) which we
call the world. All other attributes of the corporeal thing, its color,
weight, and hardness, can be taken away from it, and it can still re-
main what it is. Indeed, these attributes are taken as modes of that
extension whose fundamental characteristic is that it perdures, remains
what it is through changes. Distinguishing extension from its attributes
and equating extension with the substance of the corporeal thing,
Descartes emphasizes that substance as such, that is, the being of an
entity as substance, is in and for itself inaccessible, in that its meaning
is self-evident."
Heidegger objects to this account of substance. He notes that
Descartes plays upon an equivocation between the being of an entity
as substance, or substantiality, and the entity itself, as a substance.
Because substantiality cannot be perceived, the possibility of a pure
problematic of being is renounced in principle. And in this way an
understanding of substance is developed from the standpoint of par-
ticular entities rather than of being itself; indeed, an understanding
of being is systematically excluded in that it is held to be self-evident:
Thus the ontological grounds for defining the "world" as res extensa
have been made plain: they lie in the idea of substantiality, which
not only remains unclarified in the meaning of its being, but gets
passed off as something incapable of clarification, and gets
represented indirectly by way of whatever substantial property
belongs most pre-eminently to the particular substance. Moreover,
in this way of defining "substance" through some substantial entity,
57. Being and Time, H89-102. The literature on Heidegger is too vast to survey,
but Thomas Sheehan's collection of articles in Heidegger The Man and the Thinker
(1981), would be a good place to start, especially Jacques Taminiaux's piece and Father
Richardson's essay, discussing the Kehre, as well as Michael Murray's Heidegger and
Modern Philosophy: Critical Essays (1978), in particular Richard Rorty's essay. L6with's
"Heidegger: Problem and Background of Existentialism," Nature, History, and Ex-
istentialism (Eng. trans. by Arnold Levison 1966), pp. 30-50, is quite helpful.
GEORGE WRIGHT
lies the reason why the term "substance" is used in two ways. What
is here intended is substantiality; and it gets understood in terms
of a characteristic of substance-a characteristic which is itself an
entity."
Mathematics is peculiarly suited for this concept of substance as that
which remains through changes:
Mathematical knowledge is regarded by Descartes as the one man-
ner of apprehending entities which can give assurance that their be-
ing has been securely grasped. If anything measures up in its own
kind of being to the being that is accessible in mathematical
knowledge, then it is in the authentic sense. Such entities are those
which always are what they are. Accordingly, that which can be
shown to have the character of something that constantly remains
(as remanens capax mutationum), makes up the real being of those
entities of the world which get experienced. That which enduringly
remains, really is. This is the sort of thing which mathematics knows.
That which is accessible in an entity through mathematics, makes
up its being. Thus the being of the "world" is, as it were, dictated
to it in terms of a definite idea of being which lies veiled in the
concept of substantiality, and in terms of the idea of a knowledge
by which such entities are cognized.s
9
Descartes thus prescribes for the world its real being, rather than
letting the entities within the world present the kind of being they
manifest. And he does so on the basis of an uncritically accepted under-
standing of substance as that which is constantly present at hand, merely
there, perduring through change. Mathematics is thus not the origin
but a complement of the idea of substantiality that dominates his
thought. In this, Descartes is a faithful representative of the tradition
in that this relation of mathematics and substance was present at the
beginning of metaphysics in Plato."
58. Being and Time, H94.
59. Being and Time, H95-6.
60. The terms presence at hand and present at hand substitute in Being and Time
for what traditional philosophy knows as existentia. They signal Heidegger's desire
to distinguish Dasein (existence, or ek-sistence) from other entities not of Dasein's
special character as the being whose being is at issue; see Being and Time, 9. It
is Heidegger's belief that a shift occurs in Plato from an understanding of truth as
the unconcealedness of being to the correctness of assertions about beings and that
this shift is the hallmark of metaphysical thinking, the "thing-ontology," the ontology
of the present at hand, which controls even Descartes' and Kant's thought; see infra,
footnote 61. With it, the question of method, as the means of assuring such correct-
ness, assumes an overriding and disproportionate importance. Michael Dummett, in
a recent talk at Berkeley, has pointed out that statements can be undeniably true even
though no method can be devised to certify their truth. Thus, for example, it is quite
true that a certain number of people occupied a given room at a given time even
Heidegger faults not only Descartes' understanding of the world as
res extensa but also his robbing human sensory experience of all
relatedness to being:
The idea of being as permanent presence at hand not only gives
Descartes a motive for identifying entities within the world with world
in general, and for providing so extreme a definition of their being;
it also keeps him from bringing Dasein's way of behaving into view
in a manner which is ontologically appropriate. But thus the road
is completely blocked to seeing the founded character of all sensory
and intellective awareness, and to understanding these as possibilities
of being in the world. On the contrary he takes the being of "Dasein"
(to whose basic constitution being in the world belongs) in. the very
same way as he takes the being of the res extensa-namely, as
substance.
6
'
In response to the metaphysical tradition of substance taken over
by Descartes, Heidegger sets out to show how Dasein is disclosive of
both of the world and of being itself.
Dasein encounters things that surround it primarily as things which
serve this or that purpose, and not as pure things or the objects of
mathematical study. For Dasein, the world is not constituted primor-
dially as a grid of Cartesian coordinates, whose truth surpasses any
other. Rather the world is a field of areas of repulsion and attraction,
paths of access, zones of activity and repose, a give and take of atten-
tion, grounded beforehand in mood and attunement. Human interest
thus orders experiences into places and regions, specific concretions
of greater or lesser complexity, requiring more or less resort to explicit
reasoning of the sort Hobbes envisioned, the weighing and counting
out of possibilities that is typical not of the master of a field but of
a tyro, at least for the m6st part. For, as Dreyfus says, "In our own
perceptual world, we are all master players. Objects are already located
and recognized in a general way in terms of the characteristics of the
determined. On the relation of presence at hand to the Platonic and Aristotelian no-
tions of (idea), (energeia), and (ousia), see Werner Marx, Heidegger and the Tradition
(translated by Theodore Kisiel and Murray Green 1971). In general, I have not glossed
Heidegger's special vocabulary as it appears in the quotations.
61. Being and Time, H98. Heidegger later gives this summary: Descartes has nar-
rowed down the question of the world to that of things of nature [Naturdinglichkeit]
as those entities within the world which are proximally accessible. He has confirmed
the opinion that to know an entity in what is supposedly the most rigorous ontical
manner is our only possible access to the primary being of the entity which such
knowledge reveals. But at the same time we must have the insight to see that in princi-
ple the 'roundings-out' of the thing-ontology also operate on the same dogmatic basis
as that which Descartes has adopted; at H100.
GEORGE WRIGHT
field they are in before we zero in on them and concern ourselves with
their details. It is only because our interests are not objects in our ex-
perience that they can play this fundamental role of organizing our
experience into meaningful patterns or regions.
'
62 Human existence
is thus always already in a world, with entities it understands primor-
dially, out of its concern for itself:
In dealing with what is environmentally ready to hand by interpreting
it circumspectively, we "see" it as a table, a door, a carriage, or
a bridge; but what we have thus interpreted need not necessarily
be also taken apart by making an assertion which definitely
characterizes it. Any mere pre-predicative seeing of the ready to hand
is, in itself, something which already understands and interprets.
But does not the absence of such an "as" make up the mereness
of any pure perception of something? Wherever we see with this
kind of sight, we already do so understandingly and interpretative-
ly. In the mere encountering of something, it is understood in terms
of a totality of involvements; and such seeing hides in itself the ex-
plicitness of the assignment-relations ... which belong to that total-
ity
.
3
If what we encounter in the world is always already understood from
within a totality of involvements, is mere "seeing" equal to mere percep-
tion, prior to our assignment of meaning, so that what I see is sense
data, only later given the meaning "door" or "house"?
This would be a misunderstanding of the specific way in which in-
terpretation functions as disclosure. In interpreting, we do not, so
to speak, throw a "signification" over some naked thing which is
present at hand, we do not stick a value on it; but when something
within the world is encountered as such, the thing in question already
has an environment which is disclosed in our understanding of the
62. Dreyfus, What Computers Can't Do: The Limits of Artificial Intelligence (rev.
ed. 1979), p. 274.
63. Being and Time, H149 (emphasis added). For the "readiness to hand" of equip-
ment and our "circumspective" manner of dealing with it, see Being and Time, H69.
A common assertion is that lawyers have no particular cognitive standpoint; on this
view, law resembles a Cartesian science. Betti says that the training a lawyer receives.
gives him his legal (in)sight; on this view, law is a learned discipline. For Gadamer,
as for Heidegger, technique vanishes when most itself. Law for them would seem to
be a habitual attitude or mood into which one enters; with Gadamer, we might call
it a prejudice. Each of these possibilities, law as science, as discipline or as prejudice,
is rife with implications for legal education and practice, and perhaps the only view
that is inconsistent with the development of insight into interpretation in law is that
one which prevents an examination of its methods, their historical origins and develop-
ment. On the question of method in law, see Wolfgang Fikentscher's most impressive
five-volume work, Methoden des Recht (1975-77).
215
world, and this involvement is one which gets laid out by interpreta-
tion.
6
"
Interpretation is thus the working out of a prior understanding:
The projecting of the understanding has its own possibility-that
of developing itself. This development of the understanding we call
"interpretation." In it the understanding appropriate understandingly
that which is understood by it. In interpretation, understanding does
not become something different. It becomes itself. Such interpreta-
tion is grounded existentially in understanding; the latter does not
arise from the former. Nor is interpretation the acquiring of inform-
ation about what is understood; it is rather the working out of
possibilities projected in understanding."'
Interpretation makes clear that all understanding is primarily artic-
ulated according to the structure of "something as something."
That which is disclosed in understanding-that which is
understood-is already accessible in such a way that its "as which"
can be made to stand out explicitly. The "as" makes up the struc-
ture of the explicitness of something that is understood. It constitutes
the interpretation.'
6
Because interpretation always operates in a field of interest, what
is interpreted, insofar as it constitutes some aspect of that field, is taken
up from within that interest and the expectations it structures:
The ready to hand is always understood in terms of a totality of
involvements. This totality need not be grasped explicitly by a
thematic interpretation. Even if it has undergone such an interpreta-
tion, it recedes into an understanding that does not stand out from
the background. And this is the very mode in which it is the essen-
tial foundation for everyday circumspective interpretation. In every
case, this interpretation is grounded in something we have in
advance-in a fore-having. As the appropriation of understanding,
the interpretation operates in being towards a totality of involvements
which is already understood-a being which understands. When
something is understood but is still veiled, it becomes unveiled by
an act of appropriation, and this is always done under the guidance
of a point of view, which fixes that with regard to which what is
understood is to be interpreted. In every case, interpretation is
grounded in something we see in advance-in a fore-sight. This fore-
sight "takes the first cue" out of what has been taken into our fore-
having, and it does so with a view to a definite way in which this
GEORGE WRIGHT
can be interpreted. Anything understood which is held in our fore-
having and towards which we set our sights foresightedly, becomes
conceptualizable through interpretation. In such an interpretation,
the wya in which the entity we are interpreting is to be conceived
can be drawn from the entity itself, or the interpretation can force
the entity into concepts to which it is opposed in its manner of be-
ing. In either case, the interpretation has already decided for a
definite way of conceiving it, either with finality or with reserva-
tions; it is grounded in something we grasp in advance-in a
fore-conception.
An interpretation is thus never a presuppositionless apprehending
of something presented to us, and it is a derivative form of interpreta-
tion that sees things "free" of the structure of interpretation, that is,
apart from that as which they are given primordially to us. To see
things is inevitably to see them as something; the "as-structure" is given
primordially to Dasein as an aspect of its manner of being. Interpreta-
tion as discourse, as the articulation of intelligibility, represents the
possibility of speech, of vocalization, of speech acts. As such, it precedes
all predicative and thematic expression and is co-eval with understand-
ing and with states of mind as constitutive elements of Dasein.
6
1 All
that is seen is given in a context structured by the interest we project
as entities whose essence it is to project, in the anticipations and ex-
pectations we bring to bear prior to conscious elaboration of specific
contents, prior even to explicit reasoning and assertion. Our point of
view fixes beforehand, prior to analysis, calculation, and assertion,
that in regard to which interpretation proceeds.
In insisting on the priority of understanding over assertion and judg-
ment, Heidegger has sought to give an account of our dealing with
things that is more phenomenologically accurate than the Cartesian
paradigm of sheer beholding. He realized that an entity is most what
it is for us not when viewed apart from the perspective of human con-
cerns but precisely from within those concerns, when it disappears as
objective presence and is wholly taken up in our concernful dealings
67. Ibid.
68. On the as-structure, see Rodolphe Gasch6, "Quasi-Metaphoricity and the Ques-
tion of Being," Hermeneutics and Deconstruction edd. Hugh J. Silverman and Don
lhde (1985), pp. 166-90, Gasch6's discussion treats Heidegger's consideration of the
analogy of being, the doctrine of Plato and Aristotle, whose importance Heidegger
came to realize through Brentano's work. On Heidegger's treatment of the question
of Dasein's relation to truth and the possibility of falsification, which so angered Ayer,
see Being and Time, 44 and p. 62, and Gasch6, art. cit., pp. 173-5; but cf. Gadamer,
"Plato and Heidegger," The Question of Being: East-West Perspectives, ed. Mervyn
Sprung (1978), pp. 45-53, 52-3. On metaphor, see infra, footnote 87.
with it. For example, my pen is most what it is, a writing implement,
when, in writing, I have forgotten it in the desire to copy down a
thought. My understanding of it as a pen is there, as I write, as some-
thing I grasp from within my understanding of it as a pen and of myself
as one who writes and thinks. But its objective marks, its color, size,
and shape, and my observation of them disappear, retreat back into
my primordial understanding of the pen, as it fulfills its purpose in
the context of my concern for my own possibilities.
Heidegger's insight as to items of equipment like a pen pertains equally
to tools in general, including methods and methodologies. Indeed, it
is Heidegger's view that the philosophic tradition itself, beginning with
the Socrates of the Platonic dialogues, has aspired to a thinking that
would be a species of calculation, a method for revealing things as
objects open to contemplation and manipulation. This is especially clear
in Hobbes, who says, "When a man reasons; he does nothing else
but conceive a sum total from. addition of parcels, for REASON...
is nothing but reckoning."
69
The ultimate outcome of calculating thought
is technology, according to Heidegger, and a diminished understand-
ing of our essence as human beings and our capacity for orderly behavior
without recourse to rules. For, to the extent that philosophy has ac-
cepted this determination as a method of securing correctness, as it
has since Plato, it has thought away from its origin as openness to
being in the logos.
Even human concerns stand revealed in Socratic dialogue so as to
hold them in contemplation and bring them under control. Again
Dreyfus: "Socrates was dedicated to trying to make his and other peo-
ple's commitments explicit so that they could be compared, evaluated
and justified. But it is a fundamental and strange characteristic of our
lives that insofar as we turn our most personal concerns into objects,
which we can study and choose, they no longer have a grip on us.
They no longer organize a field of significant possibilities in terms of
69. Leviathan, pp. 110-11; Hobbes states: These operations [of addition and sub-
traction) are not incident to numbers only, but to all manner of things that can be
added together and taken one out of another. For as arithmetricians teach to add
and subtract in numbers, so the geometricians teach the same in lines, figures (solid
and superficial), angles, proportions, times, degrees of swiftness, force, power and
.the like; the logicians teach the same in consequences of words, adding together two
names to make an affirmation and two affirmations to make a syllogism, and many
syllogisms to make a demonstration, and from the sum, or conclusion of a syllogism,
they subtract one proposition to find the other. Writers of politics add together pac-
tions [i.e., contracts] to find men's duties; and lawyers, laws and facts to find what
is right and wrong in the actions of private men; p. 110.
GEORGE WRIGHT
which we act but become just one more possibility we can choose or
reject. Philosophers thus finally arrived at the nihilism of Nietzsche
and Sartre in which personal concerns are thought of as a table of
values which are arbitrarily chosen and can be equally arbitrarily aban-
doned or transvalued. According to Nietzsche, 'The great man is nec-
essarily a sceptic. . . . Freedom from any kind of conviction is part
of the strength of his will'."'"
Heidegger's attempt to ask the question of being in a more original
way than that opened in metaphysics pertains in the highest measure
to that entity for which to be at all is an evident and constant concern,
that is, to man. Man can surpass and transcend every being and ask
about being as such, as he does in philosophy, because he is the only
being which, in being, shows that it is concerned with being. Man is
thus open for its possible comprehension. Man has the privilege of
being in such a way that he is both thrust upon himself as a self and
yet also owns his own being. Human existence is thus not a fixed and
steady quality, such as beheld in traditional philosophy;" it is a con-
stant, unremitting possibility. Far from exhausting itself in calculation
and analysis, our understanding is open necessarily to the most trivial
and most fundamental questioning of ourselves, of our situation in
the world and of being.
Consistently with Heidegger's project of asking the question of be-
ing, human understanding is taken up in Being and Time existentially,
as a theme grasped from within the cocnerns in which we find ourselves,
in connection With our comportment towards beings and being. In this
comportment, which is distinct from the mere objectivity of inert things,
are disclosed both what we are and how we are in any given instant.
The existential analytic Heidegger conducts reveals that the essenceof
human being is possibility. "[P]ossibility ... is th emost primordial
and ultimate positive way in which Dasein is characterized ontolog-
ically."" Dasein is determined by its comportment to those possibilities
which are its own because it is in every case what it can be." Precisely
70. Dreyfus, What Computers Can't Do: The Limits of Artificial Intelligence (rev.
ed. 1979), p. 275.
71. Cf. Being and Time, H98 and 31. On the concept of "founding," see Being
and Time, 13 and H207ff.
72. Being and Time, H251. We may follow Professors Dreyfus and Rabinow in
defining an analytic as the attempt to discover the a priori conditions that make possi-
ble any analysis, with its concern with discoverable algorithms of formation (rules)
and atomic elements (facts), operative within any given discipline; see Dreyfus and
Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (1982), p. 56.
73. Both Heidegger and Gadamer recognize an echo in their thought of Hegel's
dictum, what is real is rational and what is rational is real. Many factors should prompt
from within that concern in which Dasein finds itself, Dasein is itself
as concern and in the way it can be.
Dasein's primordial comportment toward its own possibilities is thus
never a mere given; rather, it always has the character of something
open, something provisional, something incomplete. One way to say
this is that Dasein, as the entity that remembers and anticipates, pro-
jects itself as a self into a world of concerns it understands but does
not at first know and does not plan:
[Als thrown, Dasein is thrown into the kind of being which we call
"projecting."
Projecting
has nothing to do with comporting
oneself
towards a plan that has been thought out, and in accordance with
which Dasein arranges its being. On the contrary, any Dasein has,
as Dasein, already projected itself; and as long as it is, it is project-
ing. As long as it is, Dasein has understood itself and always will
understand itself from possibilities.
4
Just because Dasein is always. thrown, it never precedes itself and
thus never comes to a primordial understanding of itself except as the
possibilities in which it finds itself:
Furthermore, the character of understanding as projection is such
that the understanding does not grasp thematically that upon which
it projects-that is to say, possibilities. Grasping it in such a man-
ner would take away from what is projected its very character as
a possibility, and would reduce it to the given contents which we
have in mind; whereas projection, in throwing, throws before itself
American scholars to forgo the usual knee-jerk reaction with which this dictum is
uncomprehendingly met, that is, the usual condemnations of "rationalism," "Prus-
sian iron laws," "dogmatism" and other self-congratulatory relativist shibboleths; see
for example Reinhold Niebuhr's "Introduction" to the volume On Religion (1957),
p. xiii-x. Note.what Edward A. Purcell, Jr., says in The Crisis of Democratic Theory:
Scientific Naturalism and the Problem of Value (1973): By identifying ideology with
abstract, a priori rationalism and comprehensive, authoritarian systems of thought,
the relativist theory blinded itself to the fact that the theory itself-pragmatic, em-
piricist, pluralistic-had in fact become an ideology. The general assumptions of political
debate in America-unreflective, easily manipulable, and biased toward corporate
power-also represented an ideology. Given the ideological blindness of the first, it
was no surprise that it became a sophisticated version of the second.
The broad desire of many intellectuals to defend naturalism had led them to link
it with the existing institutions of American society, while belief in the scientific nature
of their theory obscured its partisan function. The relativist theory, with its prescriptive-
descriptive ambiguity, provided the logical passageway that allowed the normative con-
cept of America to Walk in and take over most of academic social and political thought.
It also helped explain why so many scholars-themselves intelligent, honest, humane
and democratic-could accept an ideology that in fact served to justify a quite im-
perfect status quo; p. 272.
74. Being and Time, H 145.
GEORGE WRIGHT
the possibility as possibility, and lets it be as such. As projecting,
understanding is. the kind of being of Dasein in which it is its
possibilities as possibilities."
In projecting, Dasein projects its possibilities as possibilities, not as
mere availabilities or as quantifiable units, severed from the manifold
of its concern. It does not create them or invent them but lets them
be as they are, possibilities.
How does this analysis of understanding as projection affect the her-
meneutic question raised in Betti's exchange with Gadamer over inter-
pretation in law? Heidegger notes that traditional philosophy has gen-
erally taken the sense of sight, vision, as its paradigm for knowledge,
whether it considered the nature of ideas or of physical things. Intui-
tion, in the sense of "clear-sightedness," has served as the model of
all knowledge, Heidegger says; to know a thing is to see it clearly and
distinctly. In Being and Time, Heidegger uses "sight" generally to denote
any way of access to beings and being:
"Seeing" does not mean just perceiving with the bodily eyes, but
neither does it mean pure nonsensory awareness of something pre-
sent at hand in its presence at hand. In giving existential significance
to "sight," we have merely drawn upon the peculiar feature of see-
ing, that it lets entities which are accessible to it be encountered
unconcealedly in themselves. Of course, every "sense" does this with-
in that domain of discovery which is genuinely its own. But from
the beginning onwards the tradition of philosophy has been oriented
primarily towards "seeing" as a way of access to entities and to
being. To keep the connection with the tradition, we may formalize
"sight" and "seeing" enough to obtain therewith a universal term
for characterizing any access to entities or to being, as access in
general.6
Heidegger then develops the notion of sight (Sicht) to include a
number of modes of comportment toward beings: circumspection (Urn-
sicht), that sight with which Dasein, in its dealings with techniques
and tools and equipment, holds the totality of its tasks in view; and
considerateness (Rucksicht) and forebearance (Nachsicht), those modes
of seeing which serve a similar function in Dasein's solicitous dealings
with others. He then grounds all these ways of comporting ourselves
toward things and other people in the understanding, as he has described
it, that is, as projection:
By showing how all sight is grounded primarily in understanding,
we have deprived pure intuition of its priority, which corresponds
noetically to the priority of the present at hand in traditional ontol-
ogy. "Intuition" and "thinking" are both derivatives of understand-
ing, and already rather remote ones. Even the phenomenological
"intuition of essences" is grounded in existential understanding. We
can decide about this kind of seeing only if we have obtained ex-
plicit conceptions of being and of the structure of being, such as
only phenomena in the phenomenological sense can become."
Intuition, the sheer and steady perception of some self-contained
meaning, is deprived of its priority. That long tradition of thinkers
for whom the ideal of knowledge has been sight, intuition, from
Aquinas, to Descartes, Leibniz, Kant, to Hegel and to Betti, is called
into question in the project traced in Being and Time. Knowledge, as
the sheer beholding of what is present, of what is merely there on hand
present to one's gaze, is rejected as noetic paradigm in favor of an
attitude in which absence is constitutive, as when my pen is absent
though most itself as my writing implement. Primordially, as an item
of equipment, my pen is not there characteristically in a self-contained
objectivity. It is drawn beyond itself in my use into the manifold of
my concerns by which it is essentially determined. It is elsewhere, with-
drawn into itself, inconspicuous, in favor of the work for which it
is now employed. Drawn back into itself, drawn forth beyond itself-
modes of absence, which serve to determine the being characteric of
techniques and tools.
8
In this way, the ontology of sheer objective
presence, which grounds Betti's hermeneutic and guarantees the cor-
rectness of its results, seems to be dissolved into the play of absence
and presence.
This is not to say that one interpretation is as good as any other."
All interpretation must comport with the manner of being shown by
the entity to be interpreted and may either be forced, as Heidegger
77. Being and Time, H 147. Funk and Wagnall's New Standard Dictionary (1950),
gives this definition of intuition: 2. an immediate knowledge, or envisagement of an
object, truth, or principle, whether of a physical, rational, artistic or ethical nature;
a conception derived by analogy from the act and result of clear and concentrated
vision; p. 1287. The "intuition of essences" was an interpretive possibility opened
up in the work of Heidegger's teacher, Edmund Husserl.
78. 1 have found John Sallis' article, "Into the Clearing," in Sheehan's collection
of essays, Heidegger The Man and the Thinker (1981), pp. 107-16, quite helpful in
this connection.
79. Nothing would be farther from Heidegger's or Gadamer's (or Betti's) inten-
tion than that we take their thought as warrant for arbitrary, prejudicial, "free" in-
terpretation. The one thing Gadamer does not give in Truth and Method is a defense
of prejudicial interpretation.
GEORGE WRIGHT
has said, or accurate.
8 0
But the noetic priority of rectilinear, calculative,
assertoric thought, the piecemeal counting out, that moves Hobbes-
like by discreet steps, is discounted in Heidegger's thought and with
it the claim of the exact sciences to give a knowledge more truthful
than that of the human sciences:
Any interpretation which is to contribute to understanding must
already have understood what is to be interpreted. This is a fact
that has always been remarked, even if only in the area of the
derivative ways of understanding and interpretation, such as
philological interpretation. The latter belongs within the range of
scientific knowledge. Such knowledge demands the rigor of a
demonstration to provide grounds for it. In a scientific proof, we
may not presuppose what it is our task to provide grounds for. But
if interpretation must in any case already operate in that which is
understood, and if it must draw its nurture from this, how is to
bring any scientific results to maturity without moving in a circle,
especially if, moreover, the understanding which is presupposed still
operates within our common information about man and the world?
Yet according to the most elementary rules of logic, this circle is
a circulus vitiosus. If that be so, however, the business of
historiological interpretation is excluded a priori from the domain
of rigorous knowledge. Insofar as the fact of this circle in under-
standing is not-eliminated, historiology must then be resigned to less
rigorous possibilities of knowing. Historiology is permitted to com-
pensate for this defect to some extent through the "spiritual
significance" of its "objects." But even in the opinion of the
historian himself, it would admittedly be more ideal if the circle could
be avoided and if there remained the hope of creating some time
a historiology which would be as independent of the standpoint of
the observer as our knowledge of nature is supposed to be.
But if we see this circle as a vicious one and look out for ways of
avoiding it, even if we just "sense" it as in an inevitable imperfec-
tion, then the act of understanding has been misunderstood from
the ground up. . . . What is decisive is not to get out of the circle
but to come into it in the right way. This circle of understanding
is not an orbit in which any random kind of knowledge may move;
it is the expression of the existential fore-structure of Dasein itself.
It is not to be reduced to the level of a vicious circle, or even of
a circle that is merely tolerated. In the circle is hidden a positive
possibility of the most primordial kind of knowing. To be sure, we
genuinely take hold of this possibility only when, in our interpreta-
tion, we have understood that our first, last and constant task is
never to allow our fore-havng, fore-sight, and fore-conception to
be presented to us by fancies and popular conceptions, but rather
80. See supra, pp. 26-7, footnote 67.
to make the scientific theme secure by working out these fore-
structures in terms of the things themselves. Because understanding,
in accordance with its existential meaning, is Dasein's own poten-
tiality for being, the ontological presuppositions of historiological
knowledge transcend in principle the rigor held in the most exact
sciences. Mathematics is not more rigorous than historiology, by
narrower, because the existential foundations relevant for it lie within
a narrower range."
What is decisive is not to get out of the circle but to come into it
in the right way. Dasein is circular in essence, according to Heidegger,
because its essence, as understanding which interprets, is always an
issue for itself:
The "circle" is understanding belongs to the structure of meaning,
and the latter phenomenon is rooted in the existential constitution
of Dasein-that is, in the understanding which interprets. An entity
for which, as being in the world, its being is itself an issue, has,
ontologically, a circular structure."
2
Thought proceeds in a circle because it is of the essence of human
being. What is essential limits and binds; it also grounds and makes
possible. Dasein is the entity for which being is an issue. This manner
of being makes possible the possibility of no longer being:8
Death is a possibility of being which Dasein itself has to take over
in each case. With death, Dasein stands before itself in its ownmost
potentiality for being. This is a possibility in which the issue is
nothing less that Dasein's being in the world. Its death is the possibil-
ity of no longer being able to be there. If Dasein stands before itself
82. Being and Time, HI53.
83. Theodor Adorno, in his The Jargon of Authenticity, gained a polemical ad-
vantage over Heidegger by failing to make the distinction Heidegger draws between
death and "demise," which is the cessation of life that men undergo in common with
other forms of plants and animals. Death is a constant possibility for human existence
along; it is the horizon within which Dasein alone has meaning. This is hardly a new
idea. Indeed, death has been a central philosophic and theological category for cen-
turies; Plato says that to philosophize is like practicing to die. It is thus hardly the
preserve of Hegel and Heidegger, as Karl Popper makes it out in what he now describes
as his contribution to the war effort, The Open Society and Its Enemies. Cf.
Kierkegaard's statement, in Concluding Unscientific Postscript (Eng. trans. 1941): To
have been young, and then to grow older, and finally to die is a very mediocre form
of human existence; this merit belongs to every animal. But the unification of the
different stages of life in simultaneity is the task set for human beings; at 311. It
must be stressed that, in emphasizing the centrality of death and guilt in human ex-
istence, the Heidegger of Being and Time sought in no way to invalidate or refute
the Christian symbols of eternal life and sin, as though this were possible; see Being
and Time, HI80 and H496, footnote ii.
GEORGE WRIGHT
as this possibility, it has been fully assigned to its ownmost poten-
tiality for being. When it stands before itself in this way, all its rela-
tions to any other Dasein have been undone. This ownmost non-
relational possibility is at the same time the uttermost one.
As potentiality for being, Dasein cannot outstrip the possibility for
death. Death is the possibility of the absolute impossibility of Da-
sein. Thus death reveals itself as that possibility which is one's
ownmost, which is nonrelational, and which is not to be
outstripped....
Dasein does not proximally and for the most part have any explicit
or even any theoretical knowledge of the fact that it has been
delivered over to its death, and that death belongs to being in the
world. Thrownness into death reveals itself to Dasein in a more
primordial and impressive manner in that state of mind which we
have called anxiety. . . . This anxiety is not an accidental or ran-
dom mood of "weakness" in some individual; but, as a basic state
of mind of Dasein, it amounts to the disclosedness of the fact that
Dasein exists as thrown being towards its end."
4
Dasein is finite in essence; human being is grounded in its finitude.
If an interpretation of human existence is to comport with the manner
of being human, then finitude, the understanding Dasein has through
anxiety of the possibility of no longer being, must figure as a constit-
uent element not only in the interpretive outcome but throughout the
interpretive process. It is for its failure to take account of finitude
that Gadamer, following Heidegger, disputes Vico's theory of
mythopoiesis, the production of myth as the ground of interpretation
and understanding. Thisis the second of the broader problems underly-
ing the Betti-Gadamer dispute.
We may recal that both Descartes and Vico theorized some aspect
of the alternation of subject and object: in Descartes, it was their separa-
tion; in Vico, it was the mode of considering their reunion. Vico reacted
to Cartesian doubt and the certainty of mathematical knowledge of
nature by stressing the epistemological primacy of the man-made
historical world: man makes the civil world and can therefore know
it. Implicit then in Vico's response to Descartes is the confidence that
history can be transcended absolutely, that, if researchers rid themselves
of enlightened prejudices, the true data of historical being can be re-
vealed. Also, because of his belief in the sublimity and superior wisdom
of the primaeval age of myth, the primitive and the unreflective ac-
quired in Vico a priority of truth over the perfection of reflective in-
sight and clarity of expression that his Enlightenment opponents
emulated.
Like Vico, Gadamer and Heidegger offer a critique of Descartes'
aspiration for a mathematical knowledge from without, a knowledge
independent of the perspective of the observer. But unlike Vico, they
do not aspire to the ideal eternal verity of a science of the civil world,
the world of nations. For implicit in Vico's project they find the same
unhistorical substratum uncritically accepted by Descartes, namely, the
idea of unlimited extension, in Vico's case, into the past.
8
" In this,
they see an attitude that is merely the mirror image of the errors of
the Enlightenment:
[T]he presupposition of a mysterious darkness in which there was
a mythical collective consciousness that preceded all thought is just
as dogmatic and abstract as that of a state of perfection achieved
by a total enlightenment or that of absolute knowledge. Primaeval
wisdom is only the counter-image of "primaeval stupidity.""
6
85. Truth and Method, pp. 196, 200, 203-4, 245, 336, 406.
86. Truth and Method, p. 243. Note how David Donaldson reflects the romantic
view of metaphor and of the role of its interpreter: Metaphor is the dreamworld of
language, and, like all dreamwork, its interpretation reflects as much on the inter-
preter as on the originator. The interpretation of dreams requires collaboration be-
tween a dreamer and a waker, even if they be the same person; and the act of inter-
pretation is itself a work of the imagination. So too understanding is as much a creative
endeavor as making a metaphor, and as little guided by rules; David Donaldson, "What
Metaphors Mean," On Metaphor (1979), pp. 29-46, originally published in volume
5, issue 1 of Critical Inquiry, (1978)). Compare Gadamer on metaphor: Just as speech
implies the use of pre-established words which have their universal meaning, there
is at the same time a constant process of concept formation by means of which the
life of a language develops.
The logical schema of induction and abstraction is very misleading here, as in
linguistic consciousness there is no explicit reflection on what is common to different
things, nor does the use of words in their universal meaning regard what they designate
as a case that is subsumed under a universal. The universality of the genus and the
classificatory formation of concepts are far removed from the linguistic consciousness.
Even disregarding all formal similarities that have nothing to do with the generic con-
cept, if a person transfers an expression from one thing to the other, he has in mind
something that is common to both of them, but this need not be in any sense generic
universality. He is following, rather, his widening experience, which see similarities,
whether of the appearance of the object, or of its significance for us. It is the genius
of linguistic consciousness to be able to give expression to these similarities. This is
its fundamental metaphorical nature, and it is important to see that it is the prejudice
of a theory of logic that is alien to language if the metaphorical use of a word is
regarded as not its real sense; Truth and Method (footnote omitted), pp. 388-89. While
I have chosen to highlight Betti's and Gadamer's differences, it is also quite clear
that there are profound similarities in approach and understanding, and Gadamer is
quite clear that his own work does not "disprove" Betti's. See Truth and Method,
"Hermeneutics and Historicism," pp. 460-91.
GEORGE WRIGHT
The root of this alternation between Vico and his enlightened op-
ponents is their shared assumption that progress in knowledge can be
achieved if a method is followed that frees the researcher from prejud-
ice, fromt he fore-conceptions that cloud vision. In Descartes, this is
the method of systematic doubt; in Vico, it is historical recapitulation,
whereby the original act of creative production is repeated imagina-
tively by the researcher, as when a reader recapitulates the thought
of an author. But, according to Heidegger and Gadamer, prejudice,
as a fore-structure of projective understanding, is constitutive of Da-
sein. All understanding for them involves prejudice insofar as it con-
sists of a fore-conception. This insight indeed gives the problem of
hermeneutics its thrust. For by its light:
it appears that historicism, despite its critique of rationalism and
of natural law philosophy, is based on the modern enlightenment
and unknowingly shares its prejudices.. And there is one prejudice
of the enlightenment that is essential to it: the fundamental prejudice
of the enlightenment is the prejudice against prejudice itself, which
deprives tradition of its power."
7
The results of this prejudice against prejudice may be seen in its
corrosive effects upon the authority of tradition. In the passage which
follows, Gadamer discusses the authority of the Bible, the chief docu-
ment against which enlightened thinkers focused their critical attacks:
It is the general tendency of the enlightenment not to accept any
authority and to decide everything before the judgment seat of
reason. Thus the written tradition of scripture, like any other
historical document, cannot claim any absolute validity, but the poss-
ible truth of the tradition depends on the creditibility that is assigned
to it by reason. It is not tradition, but reason that constitutes the
ultimate source of all authority. What is written down is not
necessarily true. We have superior knowledge: This is the maxim
with which the modern enlightenment approaches tradition and which
ultimately leads it to undertake historical research. It makes the tradi-
tion as much an object of criticism as do the natural sciences the
evidence of the senses. This does not necessarily mean that the 'pre-
judice against prejudice' was everywhere taken to the extreme con-
sequences of free thinking and atheism, as in England and France.
On the contrary, the German enlightenment recognized the "true
prejudices" of the Christian religion. Since the human intellect was
too weak to manage without prejudices it is at least fortunate to
.have been educated with true prejudices.'"
87. Truth and Method, pp. 239-40.
88. Truth and Method, pp. 241-2.
Despite the romantic rejection of the Enlightenment for its failure
adequately to deal with the data of human life, romanticism itself ends
in enlightenment, for it gives birth to historical science and draws
everything, even the thought of one's contemporaries, into the orbit
of historicism.
The basic discrediting of all prejudices, which unites the experimental
emphasis of the new natural sciences with the enlightenment, becomes
in the historical enlightenment, universal and radical.
This is the point at which the attempt to arrive at an historical
hermeneutics has to start its critique. The overcoming of all prejud-
ices, this global demand of the enlightenment, will prove itself a
prejudice, the removal of which opens the way to an appropriate
understanding of our finitude, which dominates not only our human-
ity, but also our historical consciousness.'
9
Any true interpretation comports with the entity to be interpreted.
Dasein, whose essence is understanding which interprets, is finite, both
in being and in understanding. It is thus a falsification if interpreta-
tion proceeds on the hypothesis of unlimited, absolute knowledge, and
yields an account of human existence as some unlimited entity, not
subject to the constraints of its manner of being. Historical in essence,
human existence is subject to the understanding that is possible in any
given time, even though clarity as to what that understanding is can-
not be achieved; rather, we can know it in the same way my pen is
known, as an alternation of presence and absence, giving itself and
withdrawing at the same time. As human existence is limited, so is
human understanding limited. It is thus a falsification to claim that
the future is wholly open to our projects, or that the past is wholly
open to our historical understanding, so that history is wholly subject
to our control. In fact, Gadamer says, history does not belong to us,
but we belong to it, to the traditions that shape us and predispose
our understanding and even make understanding possible:
Does the fact that one is set within various traditions mean really
and primarily that one is subject to prejudices and limited in one's
freedom? Is not rather all human existence, even the freest, limited
and qualified in various ways? If this is true, then the idea of an
absolute reason is impossible for historical humanity. Reason exists
for us only in concrete, historical terms, i.e., it is not its own master,
but remains constantly dependent on the given circumstances in which
it operates."
0
90. Truth and Method, p. 245. Professor Robert W. Gordon's article, "Historicism
in Legal Scholarship," 90 Yale Law Journal (1981), p. 1017, contains a number of
GEORGE WRIGHT
Historical being is itself historical, subject to the constraints of the
temporal horizon within which it is situated. The possibility of historical
knowledge thus bears within itself the disproof of our ability to realize
that undoubted clarity, that irrefutable creative grasp of subject and
object that is the basis of Vico's historical consciousness. The roman-
interesting points, but its main argument, that recovery of past political languages
may make the past irrelevant to contemporary legal concerns, or even that historical
research is-always a threat to legal scholarship, shows a failure to reflect adequately
upon the relation of law and history. Legal science cannot proceed on the basis of
its own view of history; there can be no separate "legal" historiology. Yet law must
be historical; this is the sense of Maitland's statement that the lawyer who is not or-
thodox is no lawyer. What for Professor Gordon signals the impossibility of inter-
pretation, namely, that a text may be alien to us and different from our expectations,
is in fact the premise of interpretation. Similarly, a historical argument, such as that
made by Professor Duncan Kennedy in his highly influential article on Blackstone,
"The Structure of Blackstone's Commentaries," 28 Buffalo Law Review (1979), pp.
205, 270, must be accurate, or the thrust of the argument miscarries. Although it
is a distinction often forced upon us, scholarly research about a historical figure can-
not be good as legal or political theory and bad as history. What the theorist thematizes
either happened or it did not, and, if it did not, then his theory has no ground in
history, though it may have much else to recommend it. Thus I believe it is a telling
criticism of Professor Kennedy's larger argument as to Blackstone's apologetic pur-
pose that he has mis-identified his subject's political allegiance; cf. Thomas Garden
Barnes, "Notes from the*Editors," in his edition of Blackstone's Commentaries on
the Laws of England, books 1-4 (undated). For a bibliography of writings of those
sharing the perspective of the Critical Legal Studies movement, see Duncan Kennedy
and Karl E. Klare, "A Bibliography of Critical Legal Studies," 94 Yale Law Review
(1984), p. 461. Note what Phillip E. Johnson says in his article, "Do You Sincerely
Want to be Radical?," 36 Stanford Law Review (1984), p. 247: If one parent of Critical
legal scholarship is the Critical Theory of European Marxist sociology, the other parent
is the American Legal Realism of 50 years ago, with its insight that formalistic legal
reasoning inevitably conceals subjective value choices; p. 252. The terms in which both
the CLS movement and this criticism are developed, for example, the language of
value and choice, subjectivity, sincerity as an ideal of personality, formalism, conceal-
ment and revelation as strategies of interpretation, the pursuit of interpretative
primitives, a critical stance over against authority, etc., all mark their source in the
re-presentational thought of the metaphysical tradition which is the starting-point of
Heidegger's existential analytic. Neither the CLS critique nor this criticism of CLS
overcomes the hiatus between law and its dogmatic expression and elaboration that
legal realism brought about as part of its critical strategy. Neither gets around the
subject-object impasse, the one because it emulates Marxist praxis, the other because
it seeks objectivity. Consider Betti's point that one's interpretive practice is itself a
historical outcome, which arises naturally from the necessity of synthesis and intelligibil-
ity present in law; see infra, pp. 89-90 and 93. Consider also what Gadamer says:
To interpret the law's will or the promises of God is clearly not a form of domination,
but of service. They are interpretations-which includes application-in the service
of what is considered valid. Our thesis is that historical hermeneutics also has a task
of application to perform, because it too serves the validity of meaning, in that it
explicitly and consciously bridges the gap in time that separates the interpreter from
the text and overcomes the alienation of meaning that the text has undergone; Truth
and Method, p. 278.
tic theory of society and history is thus the fulfillment of the thought
of the Enlightenment. Precisely because the romantic theory of
mythopoiesis is merely the obsverse of enlightened classicism, both
periods, the romantic and the classical, give evidence of a failure to
understand the tradition of Western culture, so that it is reconstructed
on principles different from those according to which it has power.
Heidegger and Gadamer thus measure their distance not only from
Hobbes and Descartes but also from Vico and his heirs.
Heidegger, Gadamer, and the theologian Rudolf Bultmann seek to
avoid the alternation of classicism and romanticism, of "myth" and
"reason," by attempting to think the thinking that precedes both the
division of subject and object and also their reunion by way of human
productivity. This is a theme in Heidegger's Letter on Humanism, writ-
ten in 1946, in response to an essay of Sartre describing "existentialism"
as a humanism.
Sartre had written that existence precedes essence. Tillich tells how
his brilliant aphorism had flashed across people's minds, illuminating
his interpretation of Heidegger and defining it as the dire, absurdist
irruption that has only recently fallen from public attention. Sartre
had taken Plato's assertion that essence precedes existence and merely
reversed it, to great effect.
But the reversal of a metaphysical statement remains a metaphysical
statement. Heidegger's response in the Letter was no less aphoristic
than Sartre's, though more neologistic: man's essence is his ek-sistence,
the manner of being whereby he stands out, ek-sists, into the truth
of what is." This is the question driving Heidegger's thought, the essen-
tial relation of man to being within being's relation to the essence of
man, the question of being, and the manner of human existence.
Heidegger faults Sartre for his acceptance of the traditional view
that thought is in some essential way a making, a production, a repre-
sentation, either of thoughts or of actions, in theory or practice. For
Sartre, thought is a process whereby meaning, even the meaning of
one's life, is posited courageously on the basis of a conscious, if ab-
surd, decision. But fabrication, even self-fabrication, is merely the self-
91. Heidegger, "Letter on Humanism," Basic Writings: From Being and Time
(1927) to The Task of Thinking (1964) ed. David Farrell Krell, pp. 204-9 (1977); cY.
Being and Time, 9. Gadamer makes the same point: [Understanding] is ... the
original form of the realization of [Dasein], which is being in the world. Before any
differentiation of understanding into the different directions of pragmatic or theoretical
interest, understanding is [Dasein]'s mode of being, in that it is potentiality for being
and 'possibility'. . . . Understanding is the original character of human life itself; Truth
and Method, p. 230.
GEORGE WRIGHT
assertion of a subjectivity, which represents objects for contemplation
or manipulation. Sartre had not overcome the metaphysical tradition.
What is true of self-fabrication is true also of the fabrication of
values. For Heidegger, it is not the creating and choosing of values,
or even their criticism, clarification, or destruction, that is or assures
the undoubted ground or presupposition of human understanding:
To think against "values" is not to maintain that everything inter-
preted as a "value"-"culture," "art," "science," "human dign-
ity," "world," and "God"-is valueless. Rather, it is important
finally to realize that precisely through the characterization of soem-
thing as a "value" what is so valued is robbed of its worth. That
is to say, by the assessment of something as a value what is valued
is admitted only as an object for man's estimation. But what a thing
is in its being is not exhausted by its being an object, particularly
when objectivity takes the form of value. Every valuing, even when
it values positively, is a subjectivizing. It does not let things be.
Rather valuing lets beings be valid-solely as the objects of its do-
ing. The bizarre effort to prove the objectivity of values does not
know what it is doing. When one proclaims "God" as the altogether
"highest value," this is a degradation of God's essence. Here as
elsewhere thinking in values is the greatest blasphemy imaginable
against being. To think against values therefore does not mean to
beat the drum for the valuelessness and nullity of beings. It means
rather to bring the lighting of the truth of being before thinking,
as against subjectivizing beings into mere objects.
2
Both the production and the destruction of values, unless more is
said, remain within the subjectivism of the metaphysical tradition."
92. "Letter on Humanism," p. 228. Although talk about values is widespread among
academics and becoming endemic among lawyers, countercurrents are also noticeable,
not only among opponents of the neo-Kantians, but also among followers of Comte
and Durkheim, as well as certain legal positivists. On Comte, see Gilson, The Unity
of Philosophical Experience, pp. 248-70, 277-80 (1937), and Voegelin, From Enlighten-
ment to Revolution (1975), pp. 136-59. Heidegger criticized the theory of values, or
axiology, as it has come to be known, also in his Introduction to Metaphysics, pp.
166-67 (Eng. trans. 1961), a difficult but important piece; see also Felice Battaglia's
excellent Heidegger e la filosofia dei valori (1967). Richard Stith, in his article, "Toward
Freedom from Value," 24 Catholic Lawyer (1979), pp. 333-60, rejects the talk about
values in the context of abortion. Like Heidegger, Stith insists that to assign a value
to any entity, especially another person, is already to fail to some extent to recognize
that entity's givenness and uniqueness, to split it in some way from its presence. There
is nothing particularly extraordinary about relations in which values do not figure.
There are people with whom our lives are fatefully intertwined, for good or ill. They
are not discovered by looking for a comparison; they simply exist for us in a fateful way.
93. The destruction of values in favor of value-neutrality by American behaviorists
was prepared in part by the terms of their defense by American pragmatists. If what
is interesting about a phenomenon is only its results, then there is little need, apart
from convenience, to understand the phenomenon, its manner of being, and considerable
What then is relation of theory and practice to thought which ponders
the truth of being as ek-sistence?
[Sluch thinking is neither theoretical nor practical. It comes to pass
before this distinction. Such thinking is, insofar as it is, recollection
of being and nothing else. Belonging to being, because thrown by
being into the preservation of its truth and claimed for such preserva-
tion, it thinks being. Such thinking has no result. It has no effect.
It satisfies its essence in that it is. But it is by saying its matter.
Historically, only one saying belongs to the matter of thinking, the
one that is in each case appropriate to its matter. Its material
relevance is essentially higher than the validity of the sciences because
it is freer. For it lets being be."'
and what direction can jurists take from Heidegger's thought?
Only so far as man, ek-sisting into the truth of being, belongs to
being can there come from being the assignment of those directions
that must become law and rule for man. The Greek to assign is
nemein. Nomos is not only law but more originally the assignment
contained in the dispensation of being. Only the assignment is capable
of dispatching man into being. Otherwise all law remains merely
something fabricated by human reason. More essential than insti-
tuting rules is that man find the way to his abode in the truth of
reason, for simplicity's sake, to understand the results as if there were no phenomenon.
Behaviorism obviates analysis of the background practices within which institutions
arise and develop, have, retain and lose meaning. To have noticed, for example, the
ways in which the United States Supreme Court behaves like an administrative agency
is not to recognize that result as an indication of the failure of an institution to fulfill
a set of expectations, if- it is, much less to prescribe a remedy. Both pragmatism and
behaviorism accepted what Edward. Purcell has called the normative concept of America,
that is, the view that the American historical development has general validity as an
ideal of political and social life; see supra, footnote 73. Pragmatism, as the "philosophy
of the American way of life," did so explicitly, obliging its proponents to remain
open to criticism and the possibility of growth. Its vision of social life was also condi-
tioned by its intellectual origins; Dewey's pragmatism was in some large part derived
from Hegel. See Herbert W. Schneider, A History of American Philosophy passim
(2d ed. 1963), and Wayne A. R. Leys, "Dewey's Social, Political and Legal
Philosophy," Jo Ann Boydston, Guide to the Works of John Dewey (1970), p. 131.
Behaviorists do not presuppose a background in a reflective philosophy, such as Dewey
had. Thus their defense of the normative concept of America has been implicit and
their understanding of American legal and political institutions uncritical. Though in-
formative, their research is not self-executing, even as systems maintenance; it assumes
and addresses an audience and a political context, whose meaning and purposes are
inaccessible as such in principle. Thus it is difficult to see how behaviorism can be
useful in answering the questions legal and political thinkers have historically posed
since behaviorists themselves do not admit asking these questions. It is peculiarly a
view of politics that refuses to recognize itself in its own results. Cf. Leo Strauss,
Natural Right and History (1953), pp. 1-8.
94. "Letter on Humanism,"'p. 236.
GEORGE
WRIGHT
being. This abode first yields the experience of something we can
hold on to. "Hold" in our language means "protective heed." Being
is the protective heed that holds man in his ek-sistent essence to
the truth of such protective heed-in such a way that it houses ek-
sistence in language; Thus language is at, once the house of being
and the home of human beings. Only because language is the home
of the essence of man can historical mankind and human' beings
riot be at home in their language, so that for them language becomes
a more container for their sundry preoccupations."
This appears to give rather little guidance, but it may be enough.
For despite his difficult language, despite the range and complexity
of his problems, and despite his immense output of books and articles,
Heidegger's re-appropriation of the tradition has had an enormous ef-
fect in the other human sciences, in. philosophy, theology, in literary
studies, and in the social sciences. Indeed, his thought is the most influ-
ential, his philosophic project, the most truly, thought-provoking, of
our era. And while his impact upon American legal researchers has
so far been slight, negligible, some points suggest themselves for further
development.
One is the recent debate over constitutional interpretation, that is,
over whether judges must determine and follow the original intent of
the Founding Fathers.
96
As usual, the participants in this debate framed
the issues in the most harshly disparate fashion, as a set of antinomies,
whose necessary propositions were mutually inconsistent. And the
polemical tone of the exchanges was unfortunately rather high. But
surely no one who wishes to accord the authority of the legal tradition
its force and power can deny that constitutional interpretation consistent
with the Constitution is possible, that is, that the document can be
understood in its continuity with the present, as the mediation of the
past and present. To deny this possibility precipitates a line of questions
whose answers can only be preposterous and perhaps dangerous: when
did it become impossible to interpret the Constitution; why did this
happen; could it have been avoided; what are the new principles which
serve the functions reserved for the Constitution; does some translation
language operate between this new set of constitutional principles and
the Constitution itself; who knows it; how does one learn it.
On the other side, no one who wishes to avoid the subjectivism of
historicism will rest content with the view that the Framers' original
intent is the constitutional interpreter's proper focus. Is it necessary
/
95. "Letter on Humanism," pp. 238-9.
96. Cf. Alexander M. Bickel's The Supreme Court and the Idea of Progress (1970).
to focus on intent at all? Is this approach itself not the reflection of
a failure properly to conceive the currency the Constitution retains in
our political life? Is it not preferable to seek an adequate understand-
ing of the doctument itself, from within the context of the tradition
of constitutionalism that speaks in and through the Framers into our
own times, rather than attempt some guess as to the subjective states
of mind? This is certainly in historical enquiry, but any approach, any
interpretation of and by an entity whose essence is historical, must
also be historical by necessity; otherwise, it fails to comport with the
manner of human existence. Future researchers may arrive at a keener
understanding of the historical sources within which the Constitution
speaks and gathers meaning. Recognizing this in no way detracts from
the dignity and seriousness of the work at hand but only bespeaks a
fair recognition of the partiality of our understanding and of the open-
ness of human affairs to the future.
A second way in which Heidegger's thought may become effective
is in bringing into clearer focus the realist thesis that the processes
of private law are means of gathering useful, social knowledge, on
the basis of which judges may reform the law. Legal realism is familiar
as a critical philosophy of law, scientific, empirical, methodical,
manipulative, cynical as to tradition, seeking to interpose a standard
of reason between tradition and its dogmatic expression and elabora-
tion and claiming superior knowledge and a certain method; suspicious
of authority, it gives reasons of utility and clarity for the specific political
directives it wishes to carry out.
It is pecular that the judge's opinion in a case should have been
taken over from the law schools as the archetypal expression of law
in realist jurisprudence. Few undertakings rival the modern lawsuit for
its capacity to draw participants out of their own quite real concerns
into the rigid typicality of the re-presentational concepts taken over
in various ways from philosophy and applied in the law of evidence,
procedure, fault, duty, etc." Whatever is not mediated through these
concepts simply is not there; it does not appear. A truth is hidden
here, namely, that immediacy is not a necessary condition of public
life. But is is naive to think that opinions and cases yield unimpeachable
evidence of the law or that they teach all the legal researchers need
know. Rather, it seems that they may be data only for those who do
97. See, for example, my article, "Stoic Midwives at the Birth of Jurisprudence,"
28 American Journal of Jurisprudence (1983), p. 169. To emphasize the indebtedness
of law and lawyers to the philosophic tradition is not to deny that the relationship
has been reciprocal, as shown by a number of interesting examples.
GEORGE WRIGHT
not know legal concepts or for those who do not use them merely as
data. This often remarked contradiction, that legal realism relies on
a tradition of legal thought it itself can neither replace nor sustain,
lends credence to the hypothesis that the movement was aimed at the
federal judicary, as an incitement to get and use power.
This hypothesis is also borne out by the predominance of essentially
biographical explanation of judicial action. Realist historiography
remembers those who changed rather than sustained the law and reveres
those who did so surreptiously. Indeed it is as biography that judicial
decisions are often explained; this accounts for the importance of
chambers gossip. It is as though what actually determined the outcome
of cases were some peculiarity in the lives of the actors, as individuals
or in concert, rather than the most accurate reading of the law. And
motivating the biographical understanding of law is the aesthetics of
genius, the romantic idea of creativity which we have seen proposed
in quite different circumstances by Vico: The judge has a vision and
is creative, and he creates out of the depth of his experience. But,
whether divulged in an opinion or not, biography, particularly in the
articulated, self-reflective form required of judges, is not primary; in
it, history is inevitably a private affair, merely an instance of some
larger, internal scheme, abstracted from the concerns which determine
and animate both the interests of the participants and the prejudices
of the judge himself. Again, the focus of subjectivity that is the hallmark
of realist jurisprudence is a distorting mirror.
Thus it is not surprising that, despite professed intentions, realist
jurisprudence reinforced and even necessitated an oracular interpreta-
tion of judges' activity. For, if thescience of law is essentially predic-
tive, rather than prescriptive, then a utopia of the future must replace
the mediation of the past and present as the judge's chief concern.
This is true despite claims of a superior knowledge and a certain method.
If social science yields a knowledge superior to that embedded in the
tradition, the choice to employ it rests nonetheless with the personal
convictions of the judge. And in the absence of data which, it might
be claimed, demystified and clarified the outcomes of cases better than
legal reasoning, the judge, disabused of his prejudices regarding the
legal tradition, must feel all the more required to develop a utopian
vision as the ground of this decision-making.
Now, if it is true that, to the extent that projects become objects
of conscious reflection, they lose their power to move, then we may
expect that the elaborated utopian visions of realist judges may lose
their power to move. There are indications of this failure in the areas
of abortion, capital punishment, the dminished capacity defense, alter-
native lifestyles, and defendants' rights. And citizens may refuse to
confirm a judge whose personal, articulated vision is seen to differ
markedly from their own, both when theirs is implicit and inarticulate
and when it is developed self-consciously in the representative concepts
countervailing those adopted by the individual judge. In these restraints
which the tradition exercises and gives effect we may see the limits
of the critical understanding that underlies realist jurisprudence.'
8
It may be useful to consider another question linked to the moral
dimension of law. It is true that the judge's decision, as a judgment
made by a legally constituted official, presumptively binds the con-
science? This is taken generally as one way in which moral concerns
become active in the law, and some notions of morality and some uses
of the term conscience support this understanding of the effect of the
judge's role and action.
But with Heidegger we may seek a deeper, that is, more primordial,
meaning than those whose origin was determined first in the school
of Plato, with its separation of the moral from the logical and the
physical. Heidegger describes conscience in ontological terms; that is,
he seeks to show how the phenomenon of having a conscience is a
98. See Preble Stolz, Judging Judges: The Investigation of Rose Bird and the
California Supreme Court (1981). Professor Stolz notes: The combination of the in-
evitability of political decisions, the constant threat of superior power, and the absence
of a theory that legitimates the judicial role would seem to put the justices in an intol-
erably tenuous position. But that has been true since John Marshall. Americans have
come over the years to believe deeply that judges have a useful if limited role in their
governance. The key word is "limited." . . . Most judges have not been great, but
nearly all share a belief that confidence in judicial power can best be cultivated by
staying close to the ideal of the moderate middle that judges are professionals who
care deeply about impartiality and who see themselves as neutral interpreters of policies
principally declared through the political arms of government. . . . Recognizing that
judicial power is always threatened by some exercise of majoritarian power is debilitating
only if the justices believe they have a mandate to govern by virtue of their office ...
If the court has no program beyond fair process and if its fundamental principle is
to do its best to understand, articulate and promote the policy preferences of others,
then judicial power should endure despite the ambiguities in the justices' high office;
p. 427. Whatever the specific direction one may take from Professor Stolz' account,
this statement recapitulates some key aspects of realist jurisprudence: the inability to
develop a political/historical understanding of adjudication (judicial review) and hence
the separation of law, as an essentially regulative sphere, subject to judicial oversight,
from politics, as a heteronomous area of arbitrary (policy) preferences; a description
of judicial behavior in terms of power, together with a defnse of judicial power as
guarantor of minority preferences by means of the language of rights; recommenda-
tion of impartiality and craftsmanship as aspects of a "confidence"-building strategy
for retaining judicial power, as well as a psychological analysis of factors promoting
or impeding judicial "performance." Professor Stolz writes of and to a judiciary formed
in the image of interest-group liberalism and subject to its prejudices.
GEORGE WRIGHT
testimony to some essential aspect of the relation of being and human
existence:
The ontological analysis of conscience on which we are thus em-
barking is prior to any description and classification of experience
of conscience, and likewise lies outside of any biological "explanation"
of this phenomenon (which would mean its dissolution). But it is
no less distant from a theological exegesis of conscience or any em-
ployment of this phenomenon for proofs of God or for establishing
an "immediate" consciousness of God.
. . . As a phenomenon of Dasein, conscience is not just a fact which
occurs and is occasionally present at hand. It "is" only in Dasein's
kind of being, and it makes itself known as a fact only with factical
existence and in it. The demand that an "inductive empirical proof"
should be given for the "factuality" of conscience and for the
legitimacy of its "voice," rests upon an ontological perversion of
the phenomenon. This perversion however is one that is shared by
every "superior" criticism in which conscience is taken as something
just occurring from time to time rather than as a "universally
established and ascertainable fact." Among such proofs and counter-
proofs, the fact of conscience cannot present itself at all. This is
no lack in it, but merely a sign by which we can recognize it as
ontologically of a different kind from what is environmentally present
at hand.
Conscience gives us "something" to understand; it discloses. By
characterizing this phenomenon formally in this way, we find
ourselves enjoined to take it back into the disclosedness of Dasein.
This disclosedness, as a basic state of that entity which we ourselves
are, is constituted by state of mind, understanding, falling and
discourse. If we analyze conscience more penetratingly, it is revealed
as a call. Calling is a mode of discourse. The call of conscience has
the character of an appeal to Dasein by calling it to its ownmost
potentiality for being its self; and this is done by way of summoning
it to its ownmost being guilty.
9
"
"Falling" is a term we have not encountered so far. It is a state
of mind, a mood. Mood is a primordial attestation of the essential
relation of human existence to being. It is not a content, a belief, an
awareness. It is rather an attunement, a specific, unavoidable part of
the way Dasein is:
Factically, Dasein can, should and must, through knowledge and
will, become master of its moods; in certain possible ways of ex-
isting, this may signify a priority of volition and cognition. Only
we must not be misled by this into denying that ontologically mood
is a primordial kind of being for Dasein, in which Dasein is disclosed
to itself prior to all cognition and volition, and beyond their range
of disclosure. And furthermore, when we master a mood, we do
so by way of a countermood; we are never free of moods.'
00
Fallenness, as a mood, is the continual attestation of Dasein's way
of being for the most part; in general Dasein is in an everyday kind
of way. It is attuned to what is in the world in an average, conforming
manner:
Idle talk, curiosity and ambiguity characterize the way in which,
in an everyday manner, Dasein is its "there"-the disclosedness of
being in the world. As definite existential characteristics, these are
not present at hand in Dasein but help to make up its being. In
these and in the way they are interconnected in their being, there
is revealed a basic kind of being which belongs to everydayness; we
call this the "falling" of Dasein.
This term does not express any negative evaluation, but is used to
signify that Dasein is proximally and for the most part alongside
the "world" of its concern. This "absorption in . . ." has mostly
the character of being lost in the publicness of the "they." Dasein
has, in the first instance, fallen away from itself as an authentic
potentiality for being its self, and has fallen into the world. "Fallen-
ness" into the world means an absorption in being with one another,
insofar as the latter is guided by idle talk, curiosity and ambiguity
... On no account however do the "inauthentic" and "non-
authentic" signify "really not" as if in this mode of being Dasein
were altogether to lose its being . . . Not being its self functions
as a positive possibility of that entity, which, in its essential con-
cern, is absorbed in the world. This kind of not-being has to be
conceived as that kind of being which is closest to Dasein and in
which Dasein maintains itself for the most part.
So neither must we take the fallenness of Dasein as a "fall" from
a purer and higher "primal status." Not only do we lack any ex-
perience of this ontically, but ontologically we lack any possibilities
or clues for interpreting it.'
0
'
Conscience is a call; it summons Dasein from its lostness in the public
self, the self that is average, conforming, forgetful of itself, fallen.
Conscience is thus the call of Dasein to Dasein and is in every case
my own conscience, calling me in an uncanny way to be myself:
The call does not report events; it calls without uttering anything.
The call discourses in the uncanny mode of keeping silent. And it
GEORGE WRIGHT
does this only because, in calling the one to whom the appeal is
made, it does not call him into the public idle talk of the "they,"
but calls him back from this into the reticence of his existent poten-
tiality for being. When the caller reaches him to whom the appeal
is made, it does so with a cold assurance which is uncanny but by
no means obvious. Wherein lies the basis for this assurance if not
in the fact that when Dasein has been individualized down to itself
in its uncanniness, it is for itself something that cannot be mistaken
for anything else? What is it that so radically deprives Dasein of
the possibility of misunderstanding itself by any sort of alibi and
failing to recognize itself, if not the forsakenness with which it has
been abandoned to itself?'
2
Dasein is at the same time both the caller of conscience and the one
to whom the appeal of conscience is made; the caller is Dasein, which
in its thrownness, in its already being in, is anxious about its poten-
tiality for being. Dasein, falling into the anonymity of the public self,
calls itself back in the appeal of the conscience to be itself. The call
of conscience, the retrieval of Dasein from projects taken over in an
average way, reveals that the entity that has a conscience is, in the
very basis of its being, care.
On the basis of the radical mine-ness that Dasein displays in having
a conscience, Heidegger disputes the claim of the public conscience
to be a universally binding, objective norm:
But this "public conscience"-what else is it than the voice of the
"they"? A "world-conscience" is a dubious fabrication, and Dasein
can come to this only because conscience, in its basis and essence,
is in each case mine-not only in the sense that in each case the
appeal is to one's ownmost potentiality for being, but because the
call comes from that entity which in each case I am myself.'
3
There is reason to doubt then that the judge's decision presumptive-
102. Being and time, H277.
103. Being and Time, H278. Paul Tillich derived many important insights from
Heidegger, and he drew directly on Heidegger's views of the conscience in describing
what he called the transmoral conscience; see Tillich, "The Transmoral Conscience,"
The Protestant Era (1957), pp. 136-49, and Morality and Beyond (1963). He defines
it in this way: A conscience may be "transmoral" which judges not in obedience to
a moral law but according to the participation in a reality which transcends the sphere
of moral commands. A transmoral conscience does not deny the moral-realm, but
it is driven beyond it by the unbearable tensions of the sphere of law; The Protestant
Era, p. 145. Tillich wrote with conscious reference to the seminal work of Anders
Nygren, the Bishop of Lund, Agape and Eros (translated by Philip S. Watson 1969);
see John M. Rist, "Some Interpretations of Agape and Eros," The Philosophy and
Theology of Anders Nygren ed. Charles W. Kegley (1970), pp. 156-73. At issue is
the question of whether, law, in specific historical manifestations or in its essence,
is not a form of estrangement. I hope to take up this theme again at greater length.
ly binds my conscience, however much, it determines my actions, or
even that, as an assertion' based on a derivative, representational mode
of understanding, it can bind my conscience. For what having a con-
science reveals is a guilt that is prior to the morally good and evil.
Indeed it is because Dasein, whose being is care, is guilty as such that
moral categories have their validity:
Not only can entities whose being is care load themselves with fac-
tical guilt, but they are guilty in the very basis of their being; and
this being-guilty is what provides, above all, the ontological condi-
tion for Dasein's ability to come to owe anything in factically ex-
isting. This essential being guilty is equiprimordially the existential
condition for the possibility of the "morally" good and for that
of the "morally" evil-that is, for morality in general and for the
possible forms which this may take factically. The primordial "be-
ing guilty" cannot be defined by morality, since morality already
presupposes it for itself."'
But if the judge's decision does not presumptively bind my conscience,
neither do I:
Indeed the call is precisely something which we ourselves have neither
planned nor prepared for nor voluntarily performed, nor have we
ever done so. "It" calls, against our expectations and even against
our will. On the other hand, the call undoubtedly does not come
from someone who is with me in the world. The cali comes from
me and yet from beyond and over me."'
Hearing the call of the conscience does not mean loading oneself
up with guilt about failures and omissions. It means being guilty
authentically-guilty in the way Dasein is:
Hearing the appeal correctly is thus tantamount to having an
understanding of oneself in one's ownmost potentiality for being-
that is, to projecting oneself upon one's ownmost authentic poten-
tiality for becoming guilty. When Dasein understandingly lets itself
be called forth to this possibility, this includes its becoming free for
the call-its readiness for the potentiality of getting appealed to.
In understanding the call, Dasein is in thrall to its ownmost poten-
tiality of existence. It has chosen itself.
In so choosing, Dasein makes possible its ownmost being guilty. The
common sense of the "they" knows only the satisfying of
manipulable rules and public norms and the failure to satisfy them.
It reckons up infractions of them and tries to balance them off.
It has slunk away from its ownmost being guilty so as to be able
GEORGE WRIGHT
to talk more loudly about making "mistakes". But in the appeal,
the they-self gets called to the ownmost being guilty of the self.
Understanding the call is choosing; but it is not a choosing of con-
science, which as such cannot be chosen. What is chosen is having
a conscience as being free for one's ownmost being guilty.
"Understanding the appeal" means "wanting to have a con-
science."
106
But are we not justified in faulting an understanding of the con-
science that fails to take account of the common, basic forms of the
phenomenon, that is, the bad and good conscience, that which reproves
and warns?
We miss a "positive" content in that which is called, because we
expect to be told something currently useful about assured
possibilities of "taking action" which are available and calculable.
This expectation has its basis within the horizon of that way of in-
terpreting which belongs to common-sense concern-a way of inter-
preting which forces Dasein's existence to be subsumed under the
idea of a business procedure that can be regulated. Such expecta-
tions (and in part these tacitly underlie even the demand for a
material ethic of value as contrasted with one that is "merely" for-
mal) are of course disappointed with the conscience. The call of con-
science fails to give any such "practical" injunctions, solely because
it summons Dasein to existence, to its ownmost potentiality for be-
ing its self . . . The call discloses nothing which could be either
positive or negative as something with which we can concern
ourselves; for what it has in view is a being which is ontologically
quite different-namely, existence.''
At this point, Heidegger's existential analysis circles back upon itself
in that conscience, in revealing that Dasein is guilty as such, reveals
an essential incompleteness that is nonetheless the basis and necessary
condition of projective understanding:
Dasein's being is care. It comprises in itself facticity (thrownness),
existence (projection), and falling. As being, Dasein is something
that has been thrown; it has been brought into its "there," but not
of its own accord. As being, it has taken the definite form of a
potentiality for being which has heard itself and has devoted itself
to itself, but not as itself. As existent, it never comes back behind
its thrownness in such a way that it might first release this "that
it is and has to be" from its being its self and lead it into the "there."
Thrownness however does not lie behind it as some event which has
happened to Dasein, which has factually befallen and fallen loose
107. Being and Time, H294. Heidegger is criticizing here not only neo-Kantian ethics
but Max Scheler's as well.
from Dasein again; on the contrary, as long as Dasein is, Dasein,
as care, is constantly its "that it is." To this entity it has been
delivered over, and as such it can exist solely as the entity which
it is; and as this entity to which it has been thus delivered over,
it is, in its existing, the basis of its potentiality for being. Although
it has not laid that basis itself, it reposes in the weight of it, which
is made manifest to it as a burden by Dasein's mood.
And how is Dasein this thrown basis? Only in that it projects itself
upon possibilities into which it has been thrown. The self, which
as such has to lay the basis for itself, can never get that basis into
its power; and yet, as existing, it must take over being a basis. To
be its own thrown basis is that potentiality for being which is the
issue for care.
In being a basis-that is, in existing as thrown-Dasein constantly
lags behind its possibilities. It is never existent before its basis, but
only from it and as this basis. Thus "being a basis" means never
to have power over one's ownmost being from the ground up. This
"not" belongs to the existential meaning of "thrownness."
It itself,
being a basis, is a nullity of itself. "Nullity" does not signify anything
like not being present at hand or not subsisting; what one has in
view here is rather a "not" which is constitutive for this being of
Dasein-its thrownness. The character of this "not" as a "not"
may be defined existentially: in being its self, Dasein is, as a self,
the entity that has been thrown. It has been released from its basis,
not through itself but to itself, so as to be as this basis. Dasein is
not itself the basis of its being, inasmuch as this basis first arises
from its own projection; rather, being its self, it is the being of its
basis. This basis is never anything but the basis for an entity whose
being has to take over being a basis."'
8
Thus conscience is a constituent element in human existence that
testifies to our finitude, to our being toward an end, as a constant
possibility. This theme is taken up by Gadamer, as I have emphasized,
and it makes possible and grounds an interpretation of human existence
as finite in being as in understanding.
I have translated the esssay by Betti that follows because I want
to introduce American legal researchers to the Betti-Gadamer dispute
and its underlying problems. Much of the fundamental work of
Gadamer has been translated; none of Betti's equally praised writings
has appeared, to my knowledge, in English."
0 9
And Betti's approach,
109. 1 have obtained the rights to translate Betti's hermeneutic manifesto, "Zur
Grundlegung einer allgemeinen Auslegungslehre," which first appeared in the Festschrift
GEORGE WRIGHT
despite Gadamer's strictures, is likely more accessible to those of us
in America who are both influenced by realism and disabused of its
scientism. Both men are vastly learned, powerful writers and thinkers,
bringing a particularly large vision to bear on questions that have yet
to be asked among us with equal comprehension or breadth. They
understand legal interpretation in the frame of a general account of
understanding. With them, American legal researchers can learn to repre-
sent the characteristic achievements of their discipline to those outside
the circle of professional education. With them, we can begin to trace
clearer lines of influence and insight between law and other interpretive
disciplines. With them, we may move beyond the preoccupation with
the conveniences and exigencies of the courtroom, the law office, the
law school, the legislature and the police station, toward the discourse
that unites these institutions with other centers of power in our in-
tellectual, political and social lives.
fir Ernst Rabel, published by J. C. b. Mohr (Paul Siebeck), Tijbingen. The question
Betti and Gadamer dispute as to the roles of the historian and the practitioner has
been considered by the great English scholar of the common law F.W. Maitland, in
his essay "Why the History of English Law is not written," The Collected Papers
of Frederick William Maitland ed. H. A. L. Fisher, vol. 1, (1911), pp. 480-87, 491.

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American Journal of Jurisprudence

Betti follows Vico in emphasizing the spiritual connection of historical

Implicit here are the assumptions that contemporaries share an im-

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